Annual Report

for FY 2022

April 18, 2023
ii Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

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iii Merit Systems Protection Board Annual Report for FY 2022 April 18, 2022

Foreword

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

Protection Board (MSPB) submits this Annual Report (AR) on its significant actions during fiscal 

year (FY) 2022.

We invite customers and stakeholders to send comments to improve MSPB’s ARs to:

DeeAnn Batten, Ph.D.

Performance Improvement Officer (PIO)

Office of Policy and Evaluation

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 2022 program performance results (as required under the 

Government Performance and Results Act Modernization Act of 2010 (GPRAMA)) is available in 

the Annual Performance Report and Annual Performance Plan (APR-APP) for FY 2022-2024. 

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

for FY 2022. MSPB’s ARs, AFRs, and GPRAMA documents are posted on the Plans, Budget & 

Performance page 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 MSPB’s adjudication or 

studies listservs, or follow us on Twitter @USMSPB.
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v Merit Systems Protection Board Annual Report for FY 2022 April 18, 2022

Table of Contents

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

Introduction................................................................................................................... 2

About MSPB.....................................................................................................................................................................2

MSPB’s Mission and Vision...........................................................................................................................................2

Board Members................................................................................................................................................................3

Board Quorum and Status of Board Member Nominations ...................................................................................4

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

MSPB Organizational Chart ..........................................................................................................................................6

Fiscal Year 2022 in Review ............................................................................................ 7

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

Merit Systems Studies......................................................................................................................................................7

Review of the Office of Personnel Management.......................................................................................................7

Outreach, Merit Systems Education, and References to MSPB’s Work................................................................7

Legislative and Congressional Relations Activity .......................................................................................................8

Internal Management Challenges and External Factors...........................................................................................9

Case Processing Statistics for FY 2022.........................................................................10

Summary of Cases Decided by MSPB .......................................................................................................................10

Cases Processed in the Regional and Field Offices.................................................................................................11

Cases Processed at Headquarters................................................................................................................................17

Significant Decisions Issued by the Board in FY 2022 ............................................... 23

Significant Court Opinions Issued in FY 2022.............................................................31

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit ...........................................31

Significant Opinions Issued by Other Circuit Courts .............................................................................................35

Summary of Merit Systems Studies Activity in FY 2022 ............................................. 37

Publications Issued ........................................................................................................................................................37

Merit Principles Survey and Other Surveys Administered .....................................................................................37

Merit Systems Studies Outreach and External References.....................................................................................38

Review of the U.S. Office of Personnel Management................................................. 39

Review of OPM Significant Actions ..........................................................................................................................39

Review of the Rules and Regulations of OPM.........................................................................................................49

MSPB Financial Summary .......................................................................................... 50

List of Abbreviations and Acronyms ............................................................................51
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1 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2022 ANNUAL REPORT

MESSAGE FROM THE ACTING CHAIRMAN

I am pleased to submit MSPB’s Annual Report for FY 2022 in accordance with 5 U.S.C. § 1206. FY 2022 was an 

important year for MSPB with restoration of a quorum on March 4, 2022, and a full Board on June 1, 2022. 

MSPB is now able to fulfill its full range of statutory responsibilities, including deciding cases at agency 

headquarters (HQ) and issuing merit systems studies reports. Prior to March 4, the agency was led by Tristan L. 

Leavitt in his role as Acting Chief Executive and Administrative Officer. Between March 4 and May 31, 

Raymond A. Limon served as MSPB’s Vice Chairman and Acting Chairman. I am proud and humbled to follow

in their footsteps and serve as Vice Chairman and Acting Chairman. FY 2022 was a period of profound change 

for MSPB including restoration of a quorum, resumption of all statutory Board functions, several agency and 

leadership changes, and the continuing effects of the pandemic. I offer my deep and sincere appreciation for the 

contributions of all MSPB employees, managers, and leaders whose efforts are reflected in this report.

Both prior to the restoration of a quorum and since, MSPB’s administrative judges (AJs) continued to review 

cases filed in the regional and field offices (RO/FOs), issuing 4,867 decisions in FY 2022. Between March 4 

and September 30, 2022, MSPB decided 528 cases at HQ, reducing the inherited inventory to 3,265 cases. 

Case processing statistics for the cases decided in the RO/FOs and at HQ are summarized in the case 

processing section of this report. MSPB issued several precedential decisions at HQ, most of which are 

summarized in the significant Board decisions section of this report. As a service to our readers, we also 

include a summary of decisions and opinions issued by the U.S. Court of Appeals for the Federal Circuit 

(CAFC) and other circuit and district courts on issues relevant to our jurisdiction.

MSPB issued three editions of its Issue of Merit (IoM) newsletter and published an updated merit systems studies 

research agenda for FY 2022-2026, which contains important areas and topics for its studies work over the next 

four years, including those identified as priorities of the new Board members. Other merit systems studies 

activities are summarized in that section of this report. This report also contains a summary of our work in 

reviewing the rules, regulations, and significant actions of the Office of Personnel Management (OPM). 

Beyond the internal changes described above, MSPB employees continued to confront the challenges of the 

COVID-19 pandemic. Even though a large part of MSPB’s work can be accomplished through telework, MSPB 

has increased in-office work. This has improved the effectiveness and efficiency of our work, especially on tasks 

that are better performed in the office, such as working with paper appeals and supporting the work of the new 

Board. We have also begun to return to more routine face-to-face hearings for initial appeals. 

We are sad to bid farewell but pleased to offer best wishes to Tristan Leavitt, who departed MSPB at the end of 

his term in February 2023. We hope a nomination for his position will be forthcoming from the White House 

and Senate confirmation will follow for the new Board Member. In the meantime, Member Limon and I are 

committed to working with all MPSB employees to accomplish our mission to protect merit system principles 

(MSPs) and promote a workforce free from prohibited personnel practices (PPPs). 

Cathy A. Harris 

Acting Chairman

April 18, 2023 
2 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

INTRODUCTION

This MSPB Annual Report for FY 2022 includes adjudication case processing statistics for the 

RO/FOs and for HQ; summaries of significant Board cases and court opinions relevant to MSPB’s 

work; summaries of MSPB’s merit systems studies activity; and a summary of MSPB work reviewing 

the rules, regulations and significant actions of OPM.

1 The report also contains information about 

MSPB’s financial status, outreach and education activities, legislative and congressional relations 

activities, and international activities. The report briefly references the most significant internal 

management challenges and external factors that affect MSPB’s work; more complete descriptions

are included in the APR-APP for FY 2022-2024.

About MSPB

MSPB was created by the Civil Service Reform Act (CSRA) to continue the adjudication functions of 

the Civil Service Commission, thus providing independent review and due process to employees and 

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

subpoenas, call witnesses to testify at hearings, and enforce compliance with final MSPB decisions.

MSPB also was granted broad authority to conduct independent, objective studies of the Federal merit 

systems and Federal human capital (HC) management issues. In addition, MSPB was given the 

authority and responsibility to review and act on OPM’s regulations, and to 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 MSPs, and proscribed, as contrary to MSPs, specific actions and practices as PPPs.

3

Since 

the enactment of the CSRA, Congress has given MSPB jurisdiction to hear cases and complaints filed 

under a variety of other laws.4 More information about MSPB’s jurisdiction can be found in the 

agency’s Strategic Plan at www.mspb.gov. 

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 These include the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq.; the 

Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act of 1989 (WPA), 

Pub L. 101-12, 103 Stat. 16; the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 112-199; and other laws listed 

in this and previous ARs.
3 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

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. 

Cathy A. Harris: Vice Chairman and Acting Chairman June 

2022 to Present

Cathy A. Harris was confirmed by the Senate on May 25, 2022, and 

sworn into her duties as a member of the Board on June 1, 2022. 

She was designated Vice Chairman on June 6, 2022, and currently is 

the Acting Chairman. Prior to that Ms. Harris was co-manager of 

the firm of Kator, Parks, Weiser & Harris, PLLC, in Washington, 

DC. She served as the Chair of the firm's Sexual Harassment and

LGBT Practice sections. Ms. Harris has practiced employment law,

including before MSPB, for over two decades. She has extensive

experience in the litigation and settlement of Federal sector

employment class actions and represented individual employees and

Federal agencies. Ms. Harris graduated from the George

Washington University Law School in Washington, DC with

honors in 1997, where she was a member and editor on the George Washington Law Review. She 

received the Michael D. Cooley award for most successfully maintaining her compassion, vitality, 

and humanity during law school and was elected to give the salutatory address at commencement. 

Ms. Harris received her undergraduate degree from Brown University in 1994. Prior to joining 

Kator, Parks, Weiser & Harris, PLLC, she was an Assistant District Attorney in the New York 

County District Attorney's Office. Ms. Harris also served as an Adjunct Professor at the George 

Washington University Law School from 2001 to 2004. She resides in Silver Spring, Maryland with 

her wife and daughter.

Raymond A. Limon: Board Member June 2022 to present; Vice 

Chairman and Acting Chairman March 2022 to June 2022

Raymond A. Limon was confirmed by the Senate on March 1, 2022, 

and sworn into his duties as a member of the Board on March 4, 

2022. Prior to that, Mr. Limon served as the Deputy Assistant 

Secretary for Human Capital and Diversity and the Chief Human 

Capital Officer (CHCO) and was a career member of the Senior 

Executive Service (SES) at the Department of the Interior (DOI). 

His Directorate managed DOI's strategic human capital policies and 

procedures, HR evaluations and oversight programs, occupational 

safety and health programs, and employee development and 

leadership programs, all of which served DOI's more than 70,000 

employees in more than 350 occupations and 2,400 locations. Before 

joining DOI, Mr. Limon led the State Department's Civil Service 

Human Resources (HR) Management office. He also served as the 

CHCO at the Corporation for National and Community Service (e.g., AmeriCorps, VISTA, Senior 

Corps, etc.) and chaired the Small Agency HR Council, representing approximately 100 Federal 

agencies and organizations. Earlier, Mr. Limon was an attorney at OPM’s Office of General 

Counsel, specializing in employment litigation and regulatory reviews; and served as OPM's 
4 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Director of the Office of Administrative Law Judges (ALJs), managing the government-wide 

personnel system for ALJs. He received his J.D. from Indiana University, Bloomington and is a 

former Peace Corps Volunteer (Honduras).

Tristan L. Leavitt: Board Member March 2022 to March 2023; 

MSPB Acting Chief Executive and Administrative Officer April 

2019 to March 2022

Tristan L. Leavitt was confirmed as a Member of MSPB on 

March 1, 2022. At the time, Mr. Leavitt had served as MSPB's 

General Counsel since October 2018, and, in the absence of Senateconfirmed Board members, as the agency's Acting Chief Executive 

and Administrative Officer since March 2019. He had also served 

for over two years as a Government Member of the Administrative 

Conference of the United States.

Before coming to MSPB, Mr. Leavitt served for a year and a half at 

the Office of Special Counsel (OSC) as the Principal Deputy Special 

Counsel, including time as Acting Special Counsel. His leadership at 

OSC contributed to exposing waste, fraud, and abuse throughout the Federal government, such as 

identifying $32 million in missing equipment at a U.S. Naval facility. Prior to OSC, he worked for 

eight years on Capitol Hill, conducting congressional investigations of government waste, fraud, 

and abuse and handling various transparency and accountability legislative issues. His experience 

included four years on Senator Chuck Grassley's Senate Judiciary Committee staff, where he helped 

expose government misconduct such as Operation Fast and Furious, the gunwalking scheme that 

armed Mexican drug cartels and the murderers of a U.S. Border Patrol agent. He also worked for 

two and a half years on Chairman Jason Chaffetz's House Oversight and Government Reform 

Committee staff, where he led investigations into the Federal Bureau of Investigation (FBI), the 

Department of State, the U.S. Secret Service, and more. Prior to law school, he began his career 

working for an individual member of the House of Representatives handling veterans' affairs, prolife, and religious freedom issues. During law school, he clerked for the Republican National 

Committee and for the law firm Steptoe & Johnson in Charleston, West Virginia.

Mr. Leavitt received his B.A. from Brigham Young University and his J.D. from Georgetown 

University Law Center. He and his wife Brittany Atkinson Leavitt are the proud parents of 

five children.

Board Quorum and Status of Board Member Nominations

On March 4, 2022, MSPB’s quorum was restored with the swearing in of Raymond A. Limon and 

Tristan L. Leavitt as Board Members. Between March 1, 2019, and March 3, 2022, MSPB operated 

in accordance with its continuity of operations plan, under which Mr. Leavitt, as MSPB’s General 

Counsel, served as the agency’s Acting Chief Executive and Administrative Officer.5 Between 

March 4 and June 1, 2023, Mr. Limon served as MSPB Vice Chairman and Acting Chairman. On 

June 1, 2022, Cathy A. Harris was sworn in as Board member and, on June 6, 2022, designated by 

President Biden as Vice Chairman; she is now MSPB’s Acting Chairman.6 On February 28, 2023,

5 MSPB was without a quorum of Board members for over five years (from January 8, 2017, through March 3, 2022), and without any 

presidentially appointed, Senate-confirmed Board members between March 1, 2019, and March 3, 2022.

6 Ms. Harris’ nomination as Chairman was returned to the President at the end of the 117th Congress. On January 3, 2023, the 

President renominated her as Chairman, and her nomination was referred to the Senate Committee on Homeland Security and 
5 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Mr. Leavitt departed MSPB upon completion of his term as Board Member, resulting in a vacancy 

for MSPB’s third Board member. 

MSPB Offices and Their Functions

MSPB is headquartered in Washington, DC, and has six ROs and two FOs located throughout the 

United States. For FY 2022, the agency was authorized to employ 235 full-time equivalents to 

conduct and support its statutory duties. 

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

chief executive and administrative officer. The Director of the Office of Equal Employment 

Opportunity (EEO) reports directly to the Chairman; otherwise, the directors of the offices described 

below 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. In FY 2022, the functions of this office were performed under interagency 

agreements by ALJs at the Federal Trade Commission (FTC) and the U.S. Coast Guard.

The Office of Appeals Counsel (OAC) 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 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 (OCB) receives and processes cases filed at MSPB 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 online information 

services, and administers the Freedom of Information Act and privacy 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 (EEO) plans, implements, and evaluates MSPB’s 

EEO 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 EEO Director also coordinates MSPB’s Diversity and Inclusion Council.

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

accounting, travel, time and attendance, HR, procurement, property management, physical security, 

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

programs, including reviewing agency internal controls. It also administers the agency’s crossagency servicing agreements with the Department of Agriculture’s (USDA) National Finance 

Center (NFC) for payroll services, the Department of the Treasury’s Bureau of the Fiscal Service

(BFS) for accounting services, and USDA’s Animal and Plant Health Inspection Service (APHIS) 

for HR services.

Governmental Affairs. On March 15, 2023, her nomination was reported favorably out of committee and is pending before the 

Senate.
6 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

The Office of the General Counsel (OGC), 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, administers MSPB’s ethics program, performs the inspector general 

function, and plans and directs audits and investigations. 

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

MSPB’s information technology (IT) systems and enterprise applications, and manages MSPB’s 

cybersecurity program. These services help MSPB manage its caseload efficiently and carry out its 

administrative and research responsibilities.

The Office of Policy and Evaluation (OPE) 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 is responsible for coordinating MSPB’s performance planning and reporting functions 

required by GPRAMA.

The Office of Regional Operations (ORO) oversees the agency’s six ROs and two FOs, which 

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

Program. AJs in the RO/FOs are responsible for adjudicating assigned cases and for issuing fair, 

well-reasoned, and timely initial decisions.

MSPB Organizational Chart

CHAIRMAN MEMBER

General

Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices

Atlanta, Chicago,

Dallas,

Philadelphia,

Oakland, and

Washington, DC

VICE CHAIRMAN

Field Offices

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

HR management services are provided by USDA’s APHIS Business Services. Payroll services are provided by 

USDA’s NFC. Accounting services are provided by the Department of the Treasury’s BFS. In FY 2022, ALJ 

functions were performed under interagency agreements by ALJs employed by the FTC and the U.S. Coast Guard. 

U.S. Merit Systems Protection Board
7 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

FISCAL YEAR 2022 IN REVIEW

Adjudication

In FY 2022, 4,867 cases were decided in the ROs/FOs, including addendum cases and stay requests, 

and ALJs issued nine (9) decisions. MSPB’s quorum was restored on March 4, 2022, and a full Board 

was in place on June 1, 2022. Between March 4 and the end of FY 2022 (September 30, 2022), the 

Board at HQ decided 528 cases. Statistical information on MSPB’s case processing activity for the 

RO/FOs and at HQ is provided in the section on Case Processing Statistics for FY 2022.

7

The Board issued a number of new precedential decisions, many of which are summarized in the 

section on Significant Decisions Issued by the Board in FY 2022. Precedential Board decisions 

involved topics such as jurisdiction, performance-based actions, penalty, actions under 5 U.S.C. 

§ 714, affirmative defenses, restoration to employment, discrimination, whistleblower protections,

Special Counsel actions, and Board procedures. As a service to its stakeholders, MSPB also provides

summaries of significant opinions relevant to the Board’s work that were issued in FY 2022 by the

CAFC (or Federal Circuit) and other Federal courts. Those summaries are provided in the section

on Significant Court Opinions Issued in FY 2022. The opinions cover topics such as annuity, back

pay, removal, due process (Chapter 75, and 38 U.S.C. § 714), and whistleblowing (Carr factors,

jurisdiction, and substantial evidence).

Merit Systems Studies

In FY 2022, MSPB published its new merit systems studies research agenda and three editions of its

IoM newsletter. MSPB also posted 2021 Merit Principles Survey (MPS) data and data documentation 

to Data.gov and on the MSPB website. Summaries of publications and other studies-related activities

are contained in the Summary of Merit Systems Studies Activity section of this report. 

Review of the Office of Personnel Management

MSPB has authority to review the rules, regulations, and significant actions of OPM, and 

information about these reviews is provided in the Review of OPM section of this report. In 

accordance with statute, MSPB’s annual report must contain a review of OPM’s significant actions 

and an assessment of the degree to which the actions support merit and prevent PPPs. The OPM

review section includes reviews of OPM’s significant actions related to skill-based hiring, SES 

pipeline, telework, collective bargaining, and the Federal Workforce Priorities Report. Review of 

OPM rules and regulations is carried out through the adjudication function. These reviews are rare,

and noteworthy information about this function is provided in this report. 

Outreach, Merit Systems Education, and References to MSPB’s Work 

MSPB’s education and outreach efforts are designed to enhance the understanding of the concept of 

merit, ensure that MSPs are applied consistently throughout the Government, reduce the likelihood 

of PPPs, and promote stronger merit-based management practices. MSPB outreach also promotes 

better understanding and operation of the Federal merit system disciplinary and appeals process by 

sharing information about MSPB processes and its legal precedents. All of these efforts, in turn, help

7 In accordance with the WPEA, information about FY 2022 whistleblower cases is available in MSPB’s APR-APP for FY 2022-2024, 

which is posted on MSPB’s website at www.mspb.gov.
8 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

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

provide value to the taxpayer.

In FY 2022, MSPB staff conducted 112 outreach events with a variety of customers and 

stakeholders. Events were a mix of in-person and virtual events on topics such as merit systems and 

merit-based management; Federal disciplinary policies; MSPB regulations, procedures, results, and 

legal precedent; and results of merit systems studies. Events were conducted with Federal executive 

branch departments or agencies, congressional organizations, Federal court organizations, Federal 

Executive Boards, good government and affinity groups, and a variety of legal groups (bar and other 

attorney associations, national institutes, law schools). MSPB also presented at major legal and 

research conferences such as the Federal Dispute Resolution conference, Federal Circuit Bar 

Association events, and the Chicago-Kent College of Law’s annual Federal Sector Labor Relations 

and Labor Law Program.

MSPB’s work and other activities were cited over 550 times in over 113 different print and online 

sources. Several significant citations of studies work are included in the Merit Systems Studies 

section of this report. Additional information about MSPB’s outreach and education activities and 

references to its work can be found in MSPB’s APR-APP for FY 2022-2024. 

Legislative and Congressional Relations Activity

During FY 2022, MSPB staff monitored and analyzed legislative activity relevant to MSPB’s 

jurisdiction and adjudication of appeals.8

As in past years, the National Defense Authorization Act (NDAA), the annual Department of 

Defense (DOD) policy bill, has been the primary vehicle for new laws affecting civilian employee 

policy and often also impacting MSPB. The NDAA for FY 2022 (Pub. L. 117-81) has two provisions 

with potential bearing on MSPB operations. Section 1105 amends the guidelines for reductions in 

civilian positions at DOD (10 U.C.S. § 1597(e)) by changing the determination criteria for employee 

separation from being “primarily on the basis of performance” to “account[ing] for employee 

performance ... among other factors as determined by the Secretary.” It is unclear how this change 

will be interpreted by MSPB and other tribunals. Section 1106 repeals the two-year probationary 

period for Title 10 employees, returning to the prior one-year requirement. This repeal, effective 

December 31, 2022, will provide MSPB appeal rights to DOD civilian employees who have completed 

one year of service and thus may lead to a slight increase in MSPB’s caseload. 

On December 23, 2022, the James. M. Inhofe NDAA for FY 2023 (Pub. L. 117-263) was enacted 

into law, providing an avenue for FBI employees to make whistleblower reprisal claims to MSPB, 

which previously were exclusively subject to an internal FBI appeals process. Section 5304 of the 

NDAA provides an FBI employee who alleges reprisal for protected whistleblower activities with 

the right to appeal a final determination or corrective action order to MSPB under 5 U.S.C. § 1221. 

It also allows for an appeal to MSPB under § 1221 if no final determination or corrective action 

order has been made or issued within one-hundred eighty (180) days of the FBI being notified of the 

allegation of reprisal. By expanding MSPB's whistleblowing jurisdiction to include employees not 

previously eligible to file appeals under 5 U.S.C. § 1221, this change likely will increase the number 

of complex cases adjudicated by the Board. 

8 Bills that expired at the end of the 117th Congress are not summarized here.
9 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

On December 29, 2022, President Biden signed the Consolidated Appropriations Act for Fiscal 

Year 2023 (Pub. L. No: 117-328), which contained two provisions potentially affecting MSPB as an 

employer: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal 

Protections (PUMP) for Nursing Mothers Act. The PWFA adopts the same meaning of “reasonable 

accommodation” and “undue hardship” as used in the Rehabilitation Act, which applies to Federal 

employees and incorporates standards from the Americans with Disabilities Act and describes 

employer obligations in responding to requests based on a physical or mental condition related to 

pregnancy, childbirth, and associated medical conditions. It also provides that an employer cannot 

require an employee to take paid or unpaid leave as an accommodation if another reasonable 

accommodation is available. As under the Rehabilitation Act, employers are not required under the 

PWFA to provide employees with a desired accommodation where an alternative and effective 

reasonable accommodation is available. The PUMP for Nursing Mothers Act expands existing 

obligations under the Fair Labor Standards Act to provide nursing employees with reasonable break 

times to express breast milk for a year after the child’s birth and describes specific requirements for 

lactation rooms. The PUMP for Nursing Mothers Act covers all employees. This new legislation will 

affect Federal management practices; disputes arising from these provisions could become material 

elements in appeals and mixed EEO cases.

Other Congressional Activity. MSPB staff conducted nine briefings for congressional staff during 

FY 2022. In addition to the annual budget briefings and introductory briefings for staff of the 

House and Senate Appropriations Committees, MSPB briefed staff from individual House 

Members’ offices, the Senate Majority Leader’s office, the Senate Judiciary Committee, and the 

Senate Homeland Security and Governmental Affairs Committee. Briefing topics included technical 

support for legislative language to allow FBI whistleblowers access to MSPB, legislative language to 

allow intelligence community employees access to MSPB, the Whistleblower Protection 

Improvement Act (H.R. 2988), and the nomination process for the three Board members.

Internal Management Challenges and External Factors

The most significant internal issue affecting MSPB is reduction of the HQ inherited case inventory 

now that a quorum is restored. Other significant internal challenges that could affect MSPB’s ability 

to carry out its mission include issues such as retirement eligibility, especially of those involved in 

adjudication and merit systems studies, and IT stability, cybersecurity, and implementation of its 

new, modernized electronic appeal system. The COVID-19 pandemic and adjusting to a hybrid 

working environment is an external factor that continues to present challenges for MSPB. 

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

include changes in law, jurisdiction, and appeals processes; Government-wide reform; and

workforce reshaping. More detailed information about MSPB’s internal challenges and external 

factors can be found in MSPB’s APR-APP for FY 2022-2024.
10 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

CASE PROCESSING STATISTICS FOR FY 2022

Summary of Cases Decided by MSPB

Data for cases decided in the RO/FOs reflect cases processing throughout the entire FY. At the 

outset of FY 2022, MSPB lacked a quorum; therefore, data for cases processed at HQ reflect only 

cases decided from March 4 through September 30, 2022. For this reason, HQ case processing data 

will not be comparable to HQ case processing data in prior ARs. 

Table 1: FY 2022 Summary of Cases Decided by MSPB

Cases Decided in MSPB RO/FOs Number of cases

 Appeals 4,241

 Addendum Cases1 214

 Stay Requests2 31

TOTAL Cases Decided in RO/FOs 4,486

Cases Decided by ALJs - Original Jurisdiction39

Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 428

 Petitions for review (PFRs) - Addendum Cases 48

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings 2

 Court Remands 6

 Compliance Referrals 25

 EEOC Non-concurrence Cases 0

 Arbitration Cases 3

 Subtotal - Appellate Jurisdiction 512

 Original Jurisdiction4 12

 Interlocutory Appeals 4

TOTAL Cases Decided by the Board 528

TOTAL Decisions (Board, ALJs, RO/FOs) 5,023

1 Including: 61 requests for attorney fees, 88 Compliance cases, 27 court remand cases, 17 Board remand case, 18 requests 

for compensatory damages (discrimination cases only), and 3 requests for consequential damages.

2 Including: 24 stay requests in whistleblower cases and 7 in non-whistleblower cases.

3 Including: 3 Disciplinary Action - Hatch Act cases and 6 Actions Against ALJs.

4 Including: 2 Petitions for Rulemaking, 5 Requests for Stay (OSC Filed), 1 Disciplinary Action - Hatch Act case, 1 

Disciplinary Action - Non-Hatch Act case, and 3 Actions Against ALJ's.
11 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the RO/FOs by Type of Case

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

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

Adverse Action by Agency 1,633 884 54.13 749 45.87 463 61.82 286 38.18

Termination of Probationers 424 397 93.63 27 6.37 22 81.48 5 18.52

Reduction in Force 8 4 50.00 4 50.00 2 50.00 2 50.00

Performance 127 60 47.24 67 52.76 41 61.19 26 38.81

Acceptable Level of 

Competence (ALOC)

3

29 25 86.21 4 13.79 4 100.00 0 0.00

Suitability 62 33 53.23 29 46.77 22 75.86 7 24.14

CSRS4 Retirement: Legal 122 77 63.11 45 36.89 4 8.89 41 91.11

CSRS Retirement: Disability 4 3 75.00 1 25.00 0 0.00 1 100.00

CSRS Retirement: 

Overpayment 38 16 42.11 22 57.89 11 50.00 11 50.00

FERS4 Retirement: Legal 190 138 72.63 52 27.37 6 11.54 46 88.46

FERS Retirement: Disability 357 299 83.75 58 16.25 0 0.00 58 100.00

FERS Retirement: 

Overpayment 208 121 58.17 87 41.83 60 68.97 27 31.03

FERCCA4 7 6 85.71 1 14.29 0 0.00 1 100.00

Individual Right of Action 429 285 66.43 144 33.57 83 57.64 61 42.36

USERRA 86 54 62.79 32 37.21 17 53.13 15 46.88

VEOA 49 30 61.22 19 38.78 0 0.00 19 100.00

Other5 468 447 95.51 21 4.49 19 90.48 2 9.52

Total 4,241 2,879 67.88 1,362 32.12 754 55.36 608 44.64

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.

3 ALOC means an employee is effectively performing the duties and responsibilities of his or her assigned job, which warrants 

advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s 

performance is not at an ALOC, then the agency must, under most circumstances, deny his or her within-grade increase.

4 Civil Service Retirement System (CSRS); Federal Employees Retirement System (FERS); and Federal Erroneous Retirement 

Coverage Corrections Act (FERCCA).

5 “Other” appeals include Restoration to Duty (24), Miscellaneous (380), and additional types such as Reemployment Priority, 

Employment Practices, and others.
12 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Figure 1: Type of Appeals Decided in the RO/FOs

Total Number of Appeals: 4,241

Note: Some percentages display as “0” due to rounding; percentages are rounded to add to 100%.

Adverse Action by 

Agency (1633) 39%

Termination of Probationers 

(424) 10%

Reduction in Force (8) 0%

Performance (127) 3%

Acceptable Level of Competence 

(ALOC) (29) 1%

Suitability (62) 1%

CSRS Retirement:Legal (122) 3%

CSRS Retirement: Disability (4) 0%

CSRS Retirement: Overpayment (38) 1%

FERS Retirement: Legal (190) 4%

FERS Retirement: Disablity 

(357) 8%

FERS Retirement: 

Overpayment (208) 5%

FERCCA (7) 0%

Individual Right of Action (429) 10%

Other (468) 11%

USERRA (86) 2%

VEOA (49) 1%
13 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Figure 2: Dispositions of Initial Appeals Not Dismissed 

by RO/FOs

Total Number of Appeals that Were Not Dismissed: 1,362

Percentages are rounded to add to 100%.

Figure 3: Dispositions of Initial Appeals Not Dismissed or Settled 

by RO/FOs

Based on 608 Appeals Adjudicated on the Merits

Percentages are rounded to add to 100%.

Appeal Settled 

(754) 55%

Action or Decision 

Upheld or Left 

Undisturbed (472) 35%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (116) 8%

Mitigated (9) 1%

Other (11) 1%

Action or Decision 

Upheld or Left 

Undisturbed (472) 78%

Action or Decision 

Overturned or Corrective 

Action Ordered (116) 19%

Mitigated (9) 1%

Other (11) 2%
14 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Table 3: Disposition of Appeals by Agency

(in descending order by number of decided appeals)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Office of Personnel 

Management3

943 657 69.7 286 30.3 101 35.3 185 64.7

Department of Veterans Affairs 545 370 67.9 175 32.1 110 62.9 65 37.1

Department of the Army 405 271 66.9 134 33.1 90 67.2 44 32.8

United States Postal Service 364 239 65.7 125 34.3 92 73.6 33 26.4

Department of the Navy 291 190 65.3 101 34.7 54 53.5 47 46.5

Department of Homeland 

Security 264 168 63.6 96 36.4 43 44.8 53 55.2

Department of Defense 201 138 68.7 63 31.3 40 63.5 23 36.5

Department of the Air Force 197 124 62.9 73 37.1 48 65.8 25 34.2

Department of Health and 

Human Services 184 143 77.7 41 22.3 32 78.0 9 22.0

Department of Justice 183 129 70.5 54 29.5 22 40.7 32 59.3

Department of the Treasury 132 93 70.5 39 29.5 21 53.8 18 46.2

Department of Agriculture 91 52 57.1 39 42.9 23 59.0 16 41.0

Department of the Interior 81 52 64.2 29 35.8 18 62.1 11 37.9

Social Security Administration 68 51 75.0 17 25.0 8 47.1 9 52.9

Department of Commerce 54 36 66.7 18 33.3 9 50.0 9 50.0

Department of Transportation 52 38 73.1 14 26.9 11 78.6 3 21.4

Department of Labor 38 24 63.2 14 36.8 7 50.0 7 50.0

Equal Employment Opportunity 

Commission 16 15 93.8 1 6.3 1 100.0 0 0.0

National Aeronautics and Space 

Administration 12 6 50.0 6 50.0 3 50.0 3 50.0

Department of State 11 9 81.8 2 18.2 1 50.0 1 50.0

Environmental Protection 

Agency 11 9 81.8 2 18.2 0 0.0 2 100.0

Department of Energy 9 6 66.7 3 33.3 2 66.7 1 33.3

Department of Housing and 

Urban Development 8 4 50.0 4 50.0 3 75.0 1 25.0

Department of Education 7 4 57.1 3 42.9 1 33.3 2 66.7

Small Business Administration 7 5 71.4 2 28.6 0 0.0 2 100.0

Selective Service System 6 5 83.3 1 16.7 0 0.0 1 100.0

Office of Special Counsel 5 5 100.0 0 0.0 0 0.0 0 0.0

Agency for International 

Development 4 4 100.0 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 4 2 50.0 2 50.0 1 50.0 1 50.0

Federal Reserve System 4 3 75.0 1 25.0 1 0.0 0 0.0
15 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

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

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

General Services Administration 4 2 50.0 2 50.0 2 100.0 0 0.0

National Archives and Records 

Administration 4 2 50.0 2 50.0 2 100.0 0 0.0

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

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

Development Finance 

Corporation 2 1 50.0 1 50.0 1 100.0 0 0.0

Federal Housing Finance Agency 2 1 50.0 1 50.0 0 0.0 1 0.0

International Boundary and 

Water Commission: U.S. and 

Mexico

2 2 100.0 0 0.0 0 0.0 0 0.0

National Credit Union 

Administration 2 0 0.0 2 100.0 0 0.0 2 100.0

Nuclear Regulatory Commission 2 2 100.0 0 0.0 0 0.0 0 0.0

Other (Non-agency) 2 2 100.0 0 0.0 0 0.0 0 0.0

Pension Benefit Guaranty 

Corporation 2 1 50.0 1 50.0 1 100.0 0 0.0

Railroad Retirement Board 2 2 100.0 0 0.0 0 0.0 0 0.0

Securities and Exchange 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0

U.S. Agency for Global Media 2 0 0.0 2 100.0 2 0.0 0 0.0

Administrative Office of the U.S. 

Courts 1 1 100.0 0 0.0 0 0.0 0 0.0

African Development 

Foundation 1 0 0.0 1 100.0 1 0.0 0 0.0

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

Federal Labor Relations 

Authority 1 1 100.0 0 0.0 0 0.0 0 0.0

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

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

Millennium Challenge 

Corporation 1 0 0.0 1 100.0 1 0.0 0 0.0

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

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

Smithsonian Institution 1 0 0.0 1 100.0 1 0.0 0 0.0

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

Totals 4,241 2,879 67.9 1,362 32.1 754 55.4 608 44.6

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

2 Percent Settled and Adjudicated are of the number Not Dismissed

3 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the CSRS and FERS 

administrator.
16 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Office of Personnel 

Management2

185 133 71.9 44 23.8 0 0.0 8 4.3

Department of Veterans Affairs 65 52 80.0 10 15.4 1 1.5 2 0.0

Department of Homeland 

Security 53 45 84.9 5 9.4 3 5.7 0 0.0

Department of the Navy 47 38 80.9 9 19.1 0 0.0 0 0.0

Department of the Army 44 32 72.7 10 22.7 2 4.5 0 0.0

United States Postal Service 33 23 69.7 9 27.3 1 3.0 0 0.0

Department of Justice 32 24 75.0 7 21.9 1 3.1 0 0.0

Department of the Air Force 25 23 92.0 2 8.0 0 0.0 0 0.0

Department of Defense 23 18 78.3 5 21.7 0 0.0 0 0.0

Department of the Treasury 18 17 94.4 1 5.6 0 0.0 0 0.0

Department of Agriculture 16 12 75.0 3 18.8 0 0.0 1 6.3

Department of the Interior 11 9 81.8 2 18.2 0 0.0 0 0.0

Department of Commerce 9 7 77.8 2 22.2 0 0.0 0 0.0

Department of Health and 

Human Services 9 8 88.9 1 11.1 0 0.0 0 0.0

Social Security Administration 9 7 77.8 1 11.1 1 11.1 0 0.0

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

Department of Transportation 3 2 66.7 1 33.3 0 0.0 0 0.0

National Aeronautics and Space 

Administration 3 3 100.0 0 0.0 0 0.0 0 0.0

Department of Education 2 2 100.0 0 0.0 0 0.0 0 0.0

Environmental Protection 

Agency 2 2 100.0 0 0.0 0 0.0 0 0.0

National Credit Union 

Administration 2 2 100.0 0 0.0 0 0.0 0 0.0

Small Business Administration 2 2 100.0 0 0.0 0 0.0 0 0.0

Department of Energy 1 1 100.0 0 0.0 0 0.0 0 0.0

Department of Housing and 

Urban Development 1 1 100.0 0 0.0 0 0.0 0 0.0

Department of State 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

Federal Housing Finance Agency 1 1 100.0 0 0.0 0 0.0 0 0.0

Government Publishing Office 1 0 0.0 1 100.0 0 0.0 0 0.0

Selective Service System 1 1 100.0 0 0.0 0 0.0 0 0.0

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

TOTAL 608 472 77.6 116 19.1 9 1.5 11 1.8

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

2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the CSRS and 

FERS administrator.
17 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Cases Processed at Headquarters

As a reminder, these data represent cases decided between March 4 and September 30, 2022. 

Therefore, these data are not comparable to full-year results contained in other ARs.

Table 5: Disposition of PFRs of Initial Decisions by Type of Case

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

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

Adverse Action by Agency 134 7 5.22 31 23.13 68 50.75 6 4.48 22 16.42

Termination of 

Probationers 56 5 8.93 3 5.36 37 66.07 2 3.57 9 16.07

Reduction in Force 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Performance 17 0 0.00 5 29.41 3 17.65 0 0.00 9 52.94

Acceptable Level of 

Competence (ALOC)2

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Suitability 2 0 0.00 1 50.00 1 50.00 0 0.00 0 0.00

CSRS3 Retirement: Legal 19 3 15.79 2 10.53 10 52.63 0 0.00 4 21.05

CSRS Retirement: Disability 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

CSRS Retirement: 

Overpayment 5 1 20.00 1 20.00 0 0.00 1 20.00 2 40.00

FERS3 Retirement: Legal 8 0 0.00 0 0.00 6 75.00 0 0.00 2 25.00

FERS Retirement: 

Disability 17 0 0.00 0 0.00 15 88.24 0 0.00 2 11.76

FERS Retirement: 

Overpayment 13 2 15.38 2 15.38 8 61.54 0 0.00 1 7.69

FERCCA3 1 1 100.00 0 0.00 0 0.00 0 0.00 0 0.00

Individual Right of Action 58 2 3.45 16 27.59 26 44.83 4 6.90 10 17.24

USERRA 9 0 0.00 2 22.22 4 44.44 0 0.00 3 33.33

VEOA 37 2 5.41 2 5.41 28 75.68 0 0.00 5 13.51

Other 45 4 8.89 8 17.78 26 57.78 2 4.44 5 11.11

Total 428 27 6.31 73 17.06 239 55.84 15 3.50 74 17.29

1 Denied; Further Analysis includes cases denied on the basis of the issues raised in the PFR, but 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 and Figures 4, 5, 

and 7. 

2 ALOC means an employee is effectively performing the duties and responsibilities of his or her assigned job, which warrants 

advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s performance is 

not at an ALOC, then the agency must, under most circumstances, deny his or her within-grade increase.

3 CSRS; FERS; and FERCCA.

Totals may not add to 100% due to rounding.
18 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Figure 4: Types of PFRs

Total Number of PFRs: 428

Note: Some percentages display as “0” due to rounding; percentages are rounded to add to 100%.

Adverse Actions 

(134) 31%

Termination of 

Probationers (56) 13%

Reduction In Force (3) 1%

Performance (17) 4%

Acceptable Level of 

Competence (1) 0%

Suitability (2) 0%

CSRA Retirement: Legal (19) 4%

CSRA Retirement: 

Disability (3) 1%

CSRA Retirement: 

Overpayment (5) 1%

FERS Retirement: 

Legal (8) 2%

FERS Retirement: 

Disability (17) 4%

FERS Retirement: 

Overpayment (13) 3%

FERCCA (1) 0%

Individual Right of 

Action (58) 14%

USERRA (9) 2%

Other (45) 11% VEOA (37) 9%
19 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Figure 5: Dispositions of PFRs

Total Number of PFRs 428

Percentages are rounded to add to 100%.

Figure 6: Dispositions of PFRs Granted

Based on 74 PFRs Granted

Percentages are rounded to add to 100%.

Dismissed (27) 6%

Settled (73) 17%

Denied (239) 56%

Denied: Further 

Analysis (15) 4%

Granted (74) 17%

Initial Decision 

Affirmed (5) 7%

Initial Decision 

Reversed (9) 12%

Case Remanded 

(55) 74%

Other (5) 7%
20 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Figure 7: Dispositions of PFRs Denied: Further Analysis

Based on 15 PFRs Denied; Further Analysis

Percentages are rounded to add to 100%.

“Other” includes forwarding the case for docketing of new claims and/or vacating the initial decision.

Initial Decision 

Affirmed (2) 13%

Other (13) 87%
21 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Table 6: Disposition of PFRs of Initial Decisions, by Agency

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

Granted

Agency # # % # % # % # % # %

Office of Personnel Management2 67 6 8.96 6 8.96 43 64.18 1 1.49 11 16.42

Department of Veterans Affairs 65 5 7.69 16 24.62 30 46.15 4 6.15 10 15.38

United States Postal Service 43 3 6.98 6 13.95 22 51.16 3 6.98 9 20.93

Department of the Army 38 2 5.26 8 21.05 21 55.26 2 5.26 5 13.16

Department of the Navy 30 2 6.67 6 20.00 19 63.33 0 0.00 3 10.00

Department of Defense 23 0 0.00 2 8.70 17 73.91 0 0.00 4 17.39

Department of Health and Human 

Services 21 0 0.00 1 4.76 16 76.19 2 9.52 2 9.52

Department of Homeland Security 21 1 4.76 8 38.10 5 23.81 1 4.76 6 28.57

Department of the Air Force 18 2 11.11 1 5.56 10 55.56 0 0.00 5 27.78

Department of the Treasury 16 1 6.25 4 25.00 10 62.50 0 0.00 1 6.25

Department of Labor 12 0 0.00 1 8.33 9 75.00 1 8.33 1 8.33

Department of Commerce 10 2 20.00 0 0.00 6 60.00 0 0.00 2 20.00

Department of the Interior 10 0 0.00 4 40.00 2 20.00 0 0.00 4 40.00

Social Security Administration 9 1 11.11 0 0.00 6 66.67 0 0.00 2 22.22

Department of Housing and Urban 

Development 7 0 0.00 1 14.29 5 71.43 0 0.00 1 14.29

Department of Justice 7 0 0.00 2 28.57 5 71.43 0 0.00 0 0.00

Department of Agriculture 6 1 16.67 2 33.33 1 16.67 0 0.00 2 33.33

Department of Transportation 4 0 0.00 1 25.00 1 25.00 1 25.00 1 25.00

Department of State 3 1 33.33 0 0.00 1 33.33 0 0.00 1 33.33

Executive Office of the President, 

Office of Administration 3 0 0.00 1 33.33 1 33.33 0 0.00 1 33.33

Department of Energy 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Environmental Protection Agency 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Government Publishing Office 2 0 0.00 2 100.00 0 0.00 0 0.00 0 0.00

Central Intelligence Agency 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Equal Employment Opportunity 

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

Federal Deposit Insurance 

Corporation 1 0 0.00 1 100.00 0 0.00 0 0.00 0 0.00
22 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Table 6: Disposition of PFRs of Initial Decisions, by Agency

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

Granted

# # % # % # % # % # %

Federal Housing Finance Agency 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

General Services Administration 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Office of Management and Budget 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Other (Non-agency) 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Pension Benefit Guaranty 

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

Small Business Administration 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

TOTAL 428 27 6.31 73 17.06 239 55.84 15 3.50 74 17.29

1 Denied; Further Analysis includes cases denied on the basis of the issues raised in the PFR, but 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 5 and Figures 4, 5, and 7.

2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the CSRS and 

FERS administrator..
23 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

SIGNIFICANT DECISIONS ISSUED BY THE BOARD IN FY 2022

Actions Under 38 U.S.C. § 714

Wilson v. VA, 2022 MSPB 7: At issue in this case was the deadline for filing a Board appeal for an 

action taken pursuant to the Department of Veterans Affairs Accountability and Whistleblower 

Protection Act of 2017 (VA Accountability Act), 38 U.S.C. § 714. Although the VA Accountability 

Act includes a 10 business day deadline for filing a Board appeal, it is silent as to the procedures and 

timeliness requirements for employees who file mixed-case complaints of discrimination followed by 

appeals to the Board. On November 27, 2017, the agency demoted the appellant pursuant to § 714. 

In its demotion decision, the agency informed the appellant that he could, among other things, 

appeal directly to the Board within 10 business days or seek EEO counseling with the agency within 

45 days, followed by a formal EEO complaint. Within 4 days after receiving the agency’s decision, 

the appellant amended a pending EEO complaint to include his demotion. After the agency failed to 

issue a final decision, the appellant filed a Board appeal on November 14, 2018. The AJ found the 

appeal timely and, after holding a hearing, reversed the demotion action, finding that the agency 

failed to prove the charge by substantial evidence. On review, the Board agreed with the AJ that the 

appeal was timely, but it clarified the legal basis for such a finding. The Board held that the VA 

Accountability Act and 5 U.S.C. § 7702, the statute providing for mixed-case appeal rights, could 

coexist. Applying various statutory construction principles, the Board reasoned, among other things, 

that the VA Accountability Act was silent as to mixed-case appeals, did not reveal a clear and 

manifest intent to repeal the time limits addressed in 5 U.S.C. § 7702, and was not the more specific 

statute regarding the time limits and procedures for filing appeals that include discrimination claims. 

Accordingly, the Board held that the appellant timely filed his appeal pursuant to 5 U.S.C. § 

7702(e)(2), which was not foreclosed by the time limit set forth in 38 U.S.C. § 714(c)(4)(B).

Affirmative Defenses

Thurman v. USPS, 2022 MSPB 21: The appellant filed a Board appeal challenging his removal, which 

the AJ sustained. Although the appellant indicated on his initial appeal form that he was raising an 

affirmative defense of retaliation for prior protected activity, the AJ did not address such a claim in 

the initial decision, nor was the appellant’s affirmative defense listed in the prehearing conference 

summary as an issue to be decided. Although not raised by the appellant on review, the Board 

clarified the factors it will consider in determining whether a previously raised affirmative defense 

has been effectively waived or abandoned by the appellant. The Board overruled Wynn v. USPS, 115 

M.S.P.R. 146 (2010), and similar cases to the extent they held that the Board must always remand a

case for consideration of an affirmative defense if an AJ has failed to comply with certain procedural

requirements. Instead, the Board held that it will consider whether an appellant has demonstrated

his intent to continue pursuing his affirmative defense and whether he conveyed that intent after

filing the appeal by analyzing the following nonexhaustive list of factors: (1) the thoroughness and

clarity with which the appellant raised an affirmative defense; (2) the degree to which the appellant

continued to pursue the affirmative defense in the proceedings below after initially raising it; (3)

whether the appellant objected to a summary of the issues to be decided that failed to include the

potential affirmative defense when specifically afforded an opportunity to object and the

consequences of the failure were made clear; (4) whether the appellant raised the affirmative defense

or the AJ’s processing of the affirmative defense claim in the petition for review; (5) whether the

appellant was represented during the course of the appeal before the AJ and on petition for review,

and, if not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the

likelihood that the presumptive abandonment of the affirmative defense was the product of

confusion, or misleading or incorrect information provided by the agency or the Board. The
24 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

applicability and weight of each factor should be determined on a case-by-case basis. Applying the 

factors, the Board held that the appellant abandoned his affirmative defense and there was no basis 

to remand the appeal for additional proceedings.

Board Procedures

McClenning v. Department of the Army, 2022 MSPB 3: The AJ issued an initial decision affirming the 

appellant’s removal. After the issuance of the initial decision, the U.S. Supreme Court decided Lucia 

v. Securities & Exchange Commission (SEC), 138 S. Ct. 2044 (2018), in which it held that SEC ALJs

qualified as Officers of the United States subject to the Appointments Clause of the U.S.

Constitution, and their appointments by SEC staff members, rather than the Commission itself,

violated the Appointments Clause. On petition for review, the appellant argued for the first time

that the initial decision should be reversed because, as in Lucia, the AJ was not properly appointed

under the Appointments Clause.

The Board held that the appellant did not timely raise her Appointments Clause challenge before the 

AJ and, therefore, consistent with the Board’s existing regulations and long-standing precedent, 

failed to preserve the issue for review. The Board reasoned that Lucia did not specifically define what 

constitutes a timely challenge to an appointment and noted that several Federal courts have held that 

parties forfeit Appointments Clause claims that are not properly raised before the adjudicating 

agency. The Board distinguished a more recent case concerning Social Security Administration (SSA) 

disability proceedings, Carr v. Saul, 141 S. Ct. 1352 (2021), in which the Court held that SSA 

claimants are not required to exhaust Appointments Clause claims before SSA to preserve them for 

judicial review. The Board found that Carr does not control when parties raise an Appointments 

Clause issue before the Board because, among other things, the Board, unlike SSA, has established 

regulations and precedent on administrative exhaustion, and the Board’s proceedings are far more 

adversarial than SSA disability proceedings and, thus, ripe for imposing issue exhaustion 

requirements. Accordingly, the Board concluded that generally an appellant must raise an 

Appointments Clause challenge to the appointment of an AJ before the close of the record on the 

initial appeal for the allegation to be timely raised and considered on petition for review. Given its 

timeliness finding, the Board declined to reach the issue of whether the Board’s method of 

appointing AJs violated the Appointments Clause.

Discrimination

Martin v. USPS, 2022 MSPB 22: The appellant filed an appeal alleging that the agency had 

constructively suspended him and discriminated against him on the basis of his disability after the 

agency refused to permit him to return to work because it found his psychologist’s note permitting 

him to return to work with no restrictions did not state whether the appellant was a threat to 

himself or others. The AJ dismissed the appeal for lack of jurisdiction finding that the appellant 

failed to show that he was constructively suspended because the agency had a reasonable basis to 

request additional medical documentation from the appellant before returning him to work. On 

review, the Board reversed the appellant’s constructive suspension on due process grounds and 

found that the appellant established his disability discrimination claim. The Board found that the 

agency constructively suspended the appellant by imposing wrongful conditions for returning to 

work. The Board further found that the agency violated the Rehabilitation Act by requiring the 

appellant to provide documentation showing that he was not a danger to himself or others. Under 

the Americans with Disabilities Act, the standards of which have been incorporated by reference 

into the Rehabilitation Act, an agency may require a medical examination or make a medical inquiry 

regarding whether an employee is an individual with a disability or as to the nature or severity of the 
25 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

disability only when such inquiry or examination “is shown to be job-related and consistent with 

business and business necessity.” The Board deferred to the Equal Employment Opportunity 

Commission’s (EEOC’s) implementing regulations and guidance, which state that an inquiry or 

medical examination may be job-related and consistent with business necessity if an employer “has 

a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential 

job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat 

due to a medical condition.” Under the circumstances, the Board found that the agency lacked a 

reasonable belief that the appellant presented a direct threat because the mere fact that an 

employee’s absence is related to a mental health condition does not constitute objective evidence 

that he is likely to be violent or do harm. The Board also found that the station manager did not 

have objective and reliable evidence that the appellant was likely to be violent based on her 

knowledge that the appellant had unspecified difficulties with a particular supervisor in the past and 

that working with that supervisor contributed to the appellant’s anxiety disorder or the fact that the 

station manager had heard that the appellant and his supervisor were involved in an altercation on 

his last day at work.

Pridgen v. Office of Management & Budget (OMB), 2022 MSPB 31: The appellant filed an appeal of her 

performance-based removal and raised affirmative defenses of discrimination based on her race, 

color, and disability, as well as retaliation for her prior EEO and whistleblowing activity. After 

holding a hearing, the AJ affirmed the appellant’s removal and found that she failed to prove any of 

her affirmative defenses. On review, the Board reversed the appellant’s removal because the agency 

failed to prove that the appellant’s performance was unacceptable in a critical element. Regarding the 

appellant’s affirmative defenses, the Board remanded, in part, for further findings after clarifying the 

applicable standards as follows. 

The Board held that claims of discrimination and retaliation under Title VII in the Federal sector, as 

well as disability discrimination claims under the Rehabilitation Act, may be proved through either 

the motivating factor or the but-for causation standard. An appellant may prove discrimination by 

various methods, which can be sufficient by themselves or can be used together, including the 

following: (1) direct evidence; (2) circumstantial evidence, which may include (a) convincing mosaic 

evidence, i.e., evidence of “suspicious timing, ambiguous statements oral or written, behavior toward 

or comments directed at employees in the protected group, and other bits and pieces from which an 

inference of discriminatory intent might be drawn,” (b) comparator evidence, or (c) evidence that 

the agency’s stated reason for its action is unworthy of belief, a mere pretext for discrimination (i.e.,

the burden-shifting standard under McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 

(1973)); or (3) some combination of direct and indirect evidence. The Board also found that 

McDonnell Douglas articulated an orderly way to evaluate the evidence as it bears on the critical 

question of discrimination and overruled Savage v. Department of the Army, 122 M.S.P.R. 612, 

paragraph 46 (2015), to the extent it held that the McDonnell Douglas framework has no application to 

Board proceedings. 

Regarding claims of retaliation for engaging in activity protected by the Rehabilitation Act, the 

Board held that such claims must be proved by the but-for causation standard. The Board overruled 

Southerland v. DOD, 119 M.S.P.R. 566, ¶ 20 (2013), to the extent that it held that a lesser causation 

standard was applicable. 

Jurisdiction 

Moncada v. Executive Office of the President, Office of Administration (OA), 2022 MSPB 25: This appeal 

concerned the Board’s 5 U.S.C. chapter 75 jurisdiction over an action taken against an employee in 
26 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

the competitive service. On review, the Board rejected the agency’s argument that the Board lacked 

jurisdiction over the appellant’s removal appeal because chapter 75 appeal rights apply only when 

the action is taken by an agency as defined under 5 U.S.C. § 105 as “an Executive department, a 

Government Corporation, and an independent establishment.” The Board held that, under the plain 

language of 5 U.S.C. § 7513(d), the key jurisdictional requirements for a chapter 75 appeal are that an 

appellant was an “employee” under 5 U.S.C. § 7511(a)(1) who was subjected to an appealable 

adverse action under chapter 75. Neither 5 U.S.C. chapter 75 nor the Board’s regulations define the 

term “agency” or otherwise indicate that a covered action may be appealed only when it has been 

taken by some “agency.” The Board acknowledged that the statute excludes individuals whose 

positions are in certain agencies but found that the OA was not specifically excluded. The Board 

further rejected the agency’s argument that the appellant was exempt from the definition of 

employee under 5 U.S.C. § 7511(b)(3), which carves out an exception for individuals whose 

appointment is made by the President. The Board found that individuals like the appellant who are 

employed by OA have not necessarily been “appointed” by the President, noting that 3 U.S.C. 

§ 107(b)(2), on which the agency relied, authorized the President to “employ” such individuals as

distinct from appointing such individuals. Accordingly, the Board found that it had jurisdiction over

the appeal because the appellant met the definition of “employee,” and a removal is an appealable

adverse action.

Penalty

Singh v. U.S. Postal Service (USPS), 2022 MSPB 15: The AJ affirmed the appellant’s demotion. On 

review, the Board considered the appellant’s claim that the AJ erred in denying his motion to 

compel discovery related to the consistency of the penalty imposed on employees for the same or 

similar offenses. The Board held that the AJ did not abuse her discretion in denying the appellant’s 

motion to compel discovery regarding the treatment of employees agency-wide who had engaged 

in similar misconduct. In so finding, the Board clarified the legal standard for analyzing disparate 

penalty claims.

The Board acknowledged that its recent disparate penalty precedent represented a departure from 

the standard set forth in Douglas v. VA, 5 M.S.P.R. 280, 305-306 (1981), which called for comparison 

of penalties “imposed upon other employees for the same or similar offenses.” Thus, the Board 

overruled cases in which it previously found that broad similarity in misconduct between the 

appellant and the comparator was sufficient to shift the burden to the agency to explain the 

difference in treatment, including the following: Figueroa v. Department of Homeland Security (DHS), 119 

M.S.P.R. 422 (2013); Villada v. USPS, 115 M.S.P.R. 268 (2010); Woebcke v. DHS, 114 M.S.P.R. 100

(2010); and Lewis v. VA, 113 M.S.P.R. 657 (2010). The Board also overruled cases that held that the

disparate penalty analysis should extend beyond the same or similar offenses, including Portner v.

Department of Justice (DOJ), 119 M.S.P.R. 365, ¶¶ 2-6, 9, 16-22 (2013), and Boucher v. USPS, 118

M.S.P.R. 640, ¶¶ 2-13, 20-29 (2012). The Board clarified that, in assessing an agency’s penalty

determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated

employees differently. The Board also reiterated that the consistency of the penalty is simply one of

many factors to consider in assessing the reasonableness of the penalty and, although the fact that a

comparator employee received a less severe penalty should be considered in favor of mitigating the

penalty, mitigation is not required in all such cases. In assessing whether an individual is a proper

comparator, the Board held that comparators should be limited to those employees whose

misconduct and/or other circumstances closely resemble those of the appellant and, although a

comparator need not always be in the same work unit or under the same supervisor, in most cases,

employees from another work unit or supervisory chain will not be proper comparators.
27 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Performance-based Actions

Lee v. VA, 2022 MSPB 11: The appellant filed an appeal of her performance-based removal under 5 

U.S.C. chapter 43. The AJ affirmed the removal. The AJ applied the Board’s legal standard at the 

time, which did not require an agency to prove that an employee was performing unacceptably 

before being given an opportunity to demonstrate acceptable performance under a performance 

improvement plan (PIP). While the appellant’s petition for review was pending before the Board, 

the Federal Circuit issued Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. 

Cir. 2021). In Santos, the Federal Circuit held that, to support an adverse action under chapter 43, an 

agency must justify placing an employee on a PIP by showing that the employee’s performance was 

unacceptable before the PIP. In light of Santos, the Board modified the standard applicable to 

chapter 43 actions and required the agency to prove the following by substantial evidence: (1) OPM

approved its performance appraisal system and any significant changes thereto; (2) the agency 

communicated to the appellant the performance standards and critical elements of her position; (3) 

the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s 

performance during the appraisal period was unacceptable in one or more critical elements; (5) the 

agency warned the appellant of the inadequacies in her performance during the appraisal period and 

gave her an adequate opportunity to demonstrate acceptable performance; and (6) after an adequate 

improvement period, the appellant’s performance remained unacceptable in at least one critical 

element. The Board found that the standards set forth in Santos apply to all pending cases, regardless 

of when the events took place, and remanded the appeal to the AJ to make findings under the 

modified standard.

Restoration Following a Work-related Injury

Cronin v. USPS, 2022 MSPB 13: The AJ dismissed the appellant’s restoration appeal for lack of 

jurisdiction because the appellant failed to nonfrivolously allege that the agency acted arbitrarily and 

capriciously in denying her request for restoration as an employee who had partially recovered from 

compensable injury. On review, the Board affirmed the initial decision as modified to clarify the 

jurisdictional elements for a restoration claim as to a partially recovered employee. The Board held 

that a denial of restoration is arbitrary and capricious if, and only if, the agency failed to meet its 

obligations under 5 C.F.R. § 353.301(d), which requires an agency to search the local commuting 

area for vacant positions to which the partially recovered employee can be restored and to consider 

the employee for such positions. Although an agency may undertake restoration efforts beyond 

those required in the regulation, its failure to comply with such self-imposed obligations cannot itself 

constitute a violation of § 353.301(d) and render a denial of restoration “arbitrary and capricious” 

for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Thus, the Board 

overruled Latham v. USPS, 117 M.S.P.R. 400 (2012), and other cases, which held that the Board had 

jurisdiction over appeals concerning the denial of restoration to partially recovered individuals when 

the denial resulted from the agency violating its own internal rules that exceeded the requirement set 

forth in 5 C.F.R. § 353.301(d). The Board further overruled Latham to the extent it suggested that a 

claim of unlawful discrimination or reprisal for protected activity could serve as an alternative means 

of showing that a denial of restoration was arbitrary and capricious. The Board reasoned that 

determining whether an agency met its obligations under § 353.301(d) will turn on whether it made 

every effort to restore a partially recovered employee in the local commuting area, according to the 

circumstances in each case. If an agency makes that effort but is unsuccessful, the denial of 

restoration is not arbitrary and capricious, and its lack of success cannot be attributed to any 

improper motive. If an agency fails to comply with § 353.301(d), the resulting denial of restoration is 

arbitrary and capricious, and no further analysis of the agency’s motive is required.
28 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Special Counsel Actions

Coffman v. OSC and DHS, 2022 MSPB 18: In April 2014, OSC sought disciplinary action against the 

petitioner pursuant to 5 U.S.C. § 1215. The ALJ assigned to the case found that OSC failed to 

prove any of the counts in its complaint and declined to impose disciplinary action against the

petitioner. The Board affirmed the ALJ’s decision. Thereafter, the petitioner filed a motion for 

attorney fees. The ALJ issued an addendum initial decision, finding that OSC, rather than the 

appellant’s employing agency, DHS, was responsible for paying the petitioner’s fees because the 

2011 version of 5 U.S.C. § 1204(m)(1) required the payment of fees by the “agency involved.” On 

review, the Board held that, pursuant to the WPEA and its amendment to 5 U.S.C. § 1204(m), the 

employee’s employing agency, not OSC, was responsible for paying the attorney fees. The Board 

noted that effective December 27, 2012, Congress, via the WPEA, made a significant change to 

§ 1204(m)(1) when it struck the term “agency involved” and replaced it with “agency where the

prevailing party was employed.” The Board further found that, although OSC began its

investigation of the petitioner and the petitioner incurred fees in 2011 prior to the effective date of

the WPEA, the operative event was the date that OSC filed its complaint on April 8, 2014, which

occurred well after the effective date of the WPEA. Accordingly, the Board found that the 2012

version of § 1204(m)(1) controlled.

Whistleblower Protection

Chambers v. DHS, 2022 MSPB 8: The Board clarified the procedural and substantive requirements 

that an appellant exhaust his administrative remedies before OSC prior to filing an individual right 

of action (IRA) appeal with the Board. The Board held that the substantive exhaustion 

requirements are met when an appellant has provided OSC with a sufficient basis to pursue an

investigation. Before the Board, an appellant may demonstrate exhaustion through his initial OSC 

complaint, correspondence with OSC, or through other sufficiently reliable evidence such as an 

affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in 

the appellant’s Board appeal. An appellant may also give a more detailed account of their 

whistleblowing activities before the Board than they did to OSC. Regarding the procedural 

requirements, the Board disagreed with the AJ that an appellant is required to respond to OSC’s 

report containing its proposed findings of fact and legal conclusions, citing the permissive 

language in 5 U.S.C. § 1214(a)(1)(D) that an individual “may submit written comments about the 

report” to OSC. Rather, to satisfy the procedural exhaustion requirements, an appellant must show 

that either (1) OSC has notified him that it terminated its investigation and no more than 60 days 

have elapsed since such notification was provided to him; or (2) 120 days have elapsed since he 

sought corrective action before OSC, and he has not been notified by OSC that it would seek 

corrective action on his behalf.

Edwards v. Department of Labor, 2022 MSPB 9: The appellant filed an IRA appeal alleging that he was 

reassigned in reprisal for his complaints that the agency was discriminating against employees based 

on their race. In particular, the appellant raised with his supervisors their alleged failure to provide 

opportunities and assignments to African American employees because of their race and disclosed 

their alleged discrimination when they refused to promote one of the appellant’s subordinates to a 

vacant supervisory position. The appellant also filed complaints of systemic race discrimination 

against African American employees with the agency’s EEO office. On review, the Board affirmed 

the AJ’s finding that the appellant failed to nonfrivolously allege the type of retaliation that could 

form the basis of an IRA appeal under 5 U.S.C. § 1221, i.e., a prohibited personnel practice as 

described under 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C), or (D).
29 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

The Board held that disclosures of race discrimination are not covered under 5 U.S.C. § 

2302(b)(8); rather, the proper forum for claims of retaliation for filing an EEO complaint is the 

EEOC. The Board overruled the following Board decisions to the contrary: Armstrong v. DOJ, 107 

M.S.P.R. 375 (2007), and Kinan v. DOD, 87 M.S.P.R. 561 (2001). The Board also held that the

appellant failed to nonfrivolously allege that his EEO complaints constituted protected activity

under 5 U.S.C. § 2302(b)(9)(A)(i) or § 2302(b)(9)(B). Such sections prohibit retaliation against an

employee for: (1) the exercise of any appeal, complaint, or grievance right granted by any law, rule,

or regulation, with regard to remedying a violation of § 2302(b)(8), and (2) testifying for or

otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance

right granted by any law, rule, or regulation, respectively. Regarding § (b)(9)(A)(i), the appellant’s

EEO complaints did not seek to remedy an alleged violation of § 2302(b)(8); rather, the appellant

sought to remedy purported reprisal for matters covered by Title VII. Regarding § (b)(9)(B), the

appellant’s complaints did not constitute lawful assistance because there was no indication in the

record that the employees who were allegedly discriminated against had filed any appeal,

complaint, or grievance. Accordingly, the Board affirmed the initial decision dismissing the appeal

for lack of jurisdiction, noting that this complaint more properly belongs before the EEOC under

Title VII itself.

Marcell v. VA, 2022 MSPB 33: The appellant filed a removal appeal and alleged that the agency’s 

decision constituted reprisal for his having filed leave requests under the Family and Medical Leave 

Act of 1993 (FMLA) and an Office of Workers’ Compensation Programs (OWCP) claim. The 

Board reversed the AJ’s ruling that the appellant’s FMLA leave requests and OWCP claim

constituted protected activity. The Board found that neither the appellant’s FMLA leave request 

nor his OWCP claim constituted protected activity under 5 U.S.C. § 2302(b)(9) because they did 

not constitute an initial step toward taking legal action against an employer for the perceived 

violation of an employee’s rights. The Board overruled its prior decisions in Doe v. USPS, 95 

M.S.P.R. 493, paragraph 11 (2004), and Crump v. VA, 114 M.S.P.R. 224, paragraphs 10-13 (2010),

to the extent they held that an FMLA leave request or OWCP claim constitutes protected activity.

Nonetheless, the Board considered his arguments to the extent they could form the basis of

another affirmative defense, such as a violation of 5 U.S.C. § 2302(b)(10), which makes it a

prohibited personnel practice to “discriminate for or against any employee or applicant for

employment on the basis of conduct which does not affect the performance of the employee or

applicant or the performance of others.” But the Board found he did not prove that the removal

was in retaliation for his FMLA requests or OWCP claim.

Skarada v. VA, 2022 MSPB 17: The appellant filed an IRA appeal alleging that the agency 

subjected him to a significant change in duties and working conditions, including subjecting him to 

a hostile work environment, in reprisal for his protected disclosures. On review, the Board found 

that the appellant established jurisdiction over his appeal but that he failed to prove by 

preponderant evidence that he was subjected to a covered personnel action. The Board held that 

to amount to a “significant change” personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), an 

agency action must have a significant impact on the overall nature or quality of an employee’s 

working conditions, responsibilities, or duties. The Board further held that, in determining 

whether an appellant has suffered a significant change in his duties, responsibilities, or working 

conditions, the Board must consider the alleged agency actions both collectively and individually 

and that the significant change personnel action should be interpreted broadly to include 

harassment and discrimination that could have a chilling effect on whistleblowing or otherwise 

undermine the merit system.
30 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

The Board found that the appellant raised a nonfrivolous allegation of a significant change in duties 

or responsibilities based on his allegations that his chain of command directed him to stop attending 

leadership meetings and performing extra duties and excluded him from the interview and hiring 

process for two new hires to his service. The Board further held that the appellant raised a 

nonfrivolous allegation of a significant change in working conditions based on the cumulative effect 

of his allegations that his chain of command harassed him and subjected him to a hostile work 

environment by, among other things, excluding him from meetings and conversations, subjecting 

him to multiple investigations, accusing him of fabricating data and of a Privacy Act violation, 

refusing his request for a review of his position for a possible upgrade, yelling at him on three 

occasions, and failing to provide him the support and guidance needed to successfully perform his 

duties. However, the Board found that the appellant did not establish by preponderant evidence that 

he was subjected to a personnel action. The Board held that the appellant’s exclusion from meetings 

and the interview and hiring process did not constitute a significant change in his duties or 

responsibilities because the record did not establish that these apparent collateral duties and 

responsibilities constituted a significant part of his duties and responsibilities. The Board also held 

that the agency’s actions, collectively or individually, did not constitute harassment to such a degree 

that his working conditions were significantly and practically impacted. Accordingly, the Board 

denied the appellant’s request for corrective action.

Spivey v. DOJ, 2022 MSPB 24: The appellant filed an IRA appeal alleging that the agency accused her 

of wrongdoing and subjected her to an investigation in reprisal for her protected disclosure and 

activity. In particular, the agency investigated allegations that the appellant had provided false 

information or lacked candor when she reported that a dog handler had violated agency procedure 

by not having his dog on a leash. The agency informed the appellant that it had concluded that she 

lacked candor in her report but that it would not take any action against her. On review, the Board 

affirmed the AJ’s finding that the appellant failed to nonfrivolously allege that she was subjected to a 

personnel action. First, regarding the agency’s conclusion that the appellant had provided false 

information, the Board held that an allegation of wrongdoing alone, without any ensuing disciplinary 

or adverse action, or threat of disciplinary or adverse action, does not constitute a personnel action. 

Next, the Board held that the AJ properly found that the appellant failed to nonfrivolously allege 

that she was subjected to a personnel action due to the agency’s investigation. The Board reasoned 

that an investigation itself is not a personnel action, and there were no allegations that, if proven, 

could have established that the investigation amounted to a threat to take a personnel action or was 

pretext for gathering evidence to use to retaliate against the appellant. Finally, the Board affirmed 

the AJ’s finding that the appellant failed to nonfrivolously allege that the investigation amounted to a 

significant change in working conditions because the appellant’s allegations that she participated in 

an interview and prepared an affidavit did not evidence a practical or significant effect on the overall 

nature and quality of her working conditions. 
31 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

SIGNIFICANT COURT OPINIONS ISSUED IN FY 2022

As a service to MSPB’s stakeholders, we have provided brief summaries of significant opinions 

issued in FY 2022 by the Federal Circuit and other Federal appellate or district courts in appeals of 

MSPB cases or on issues that affect MSPB adjudication responsibilities. There were no decisions 

issued by the U. S. Supreme Court in cases that could impact MSPB case law.

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

Annuity

Klipp v. DHS, 34 F.4th 1326 (Fed. Cir. 2022): The appellant appealed a Board decision denying his 

request for retroactive law enforcement officer (LEO) retirement coverage. The court reversed 

and remanded the Board’s decision, holding that the Board did not properly analyze whether 50 

percent or more of the appellant’s actual duties were LEO duties under Crowley v. U.S., 398 F.3d 

1329 (Fed. Cir. 2005). The court stated that Crowley prescribes two major factors to consider in 

determining whether LEO status should be conferred based on actual duties: physical 

vigorousness and hazardousness. The court found that the Board did not adequately address the 

appellant’s actual duties in a way that would enable appellate court review. The court found that 

the Board failed to separately discuss the question of vigorousness in addition to addressing 

hazardousness, as required by Crowley. The court found that the Board also erred by relying on 

position descriptions as evidence of the appellant’s actual duties, rather than separately addressing 

actual duties. The court found that Crowley required two independent findings: first, an assessment 

based on position description evidence alone; and, if that finding is adverse to the employee, a 

second assessment based solely on evidence of actual duties. The court further found that the 

Board made seemingly contradictory findings as to the appellant’s actual duties, stating both that

the duties were of an emergency or temporary nature and that he frequently and regularly 

performed them. Therefore, the court vacated and remanded the decision for further proceedings, 

recommending that the case be consolidated with the appellant’s other pending Board appeal. 

Annuity/5 U.S.C § 7702(a)(1)/Appellate Jurisdiction

Ash v. OPM, 25 F.4th 1009 (Fed. Cir. 2022): The appellant appealed OPM’s denial of his application 

for disability retirement benefits to MSPB, alleging that the denial was based on racial discrimination 

and his participation in protected activity. MSPB affirmed OPM’s decision, and the appellant sought 

judicial review in the Federal Circuit. The Federal Circuit held that the petition for judicial review 

raised a “mixed case” over which it lacked jurisdiction because an OPM decision that adversely 

affects retirement rights or benefits is a personnel action appealable to MSPB, and the appellant 

alleged discrimination. Accordingly, the court transferred the petition for judicial review to a U.S. 

District Court. 

Back Pay

Brown v. General Services Administration (GSA), 2022 WL 2354499 (Fed. Cir. 2022): The appellant 

alleged that the agency violated the settlement agreement in her underlying case because she had not 

received her back pay within 30 days of signing the agreement. The parties contested the meaning of 

the settlement term requiring that the agency “initiate payment” within 30 days. The court found 

that the Board did not err in reading the term “initiate” to mean “taking steps to initiate payment.” 

Because the agency took steps within the 30-day period to initiate payment, the court held that the 

agency did not materially breach the settlement agreement, and that the Board properly dismissed 
32 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

the petition for enforcement as moot. Judge Chen dissented, finding that the plain language of the 

settlement agreement required the agency to do something more than merely take steps to initiate 

payment: it required the agency to initiate the transfer of payment within a set time, not to merely 

take internal and preliminary steps to initiate payment. Judge Chen further would have found that, 

even under the majority’s interpretation of the agreement, the agency breached its duty to pay the 

appellant in a reasonable time because the appellant did not receive her payment until 93 days after 

the agreement was executed. 

Removal/Due Process

Johnson v. Department of the Air Force, 50 F.4th 110 (Fed. Cir. 2021): The appellant filed a grievance 

challenging the agency’s decision to remove him from his firefighter position after he tested positive 

for oxycodone and oxymorphone on a random drug test. At the arbitration hearing, the deciding 

official testified that, in deciding to remove the appellant, he consulted his wife (a nurse) and his 

brother-in-law (a nurse practitioner) and that they “confirmed that the likelihood of” the appellant’s 

explanation that he tested positive on the random drug test because he accidentally took his 

mother’s pills was “slim to none.” The arbitrator denied the appellant’s grievance and affirmed his 

removal. The appellant appealed the arbitration decision to the Federal Circuit. The court found that 

the deciding official engaged in impermissible ex parte communications that violated the appellant’s 

due process rights because the two medical professional family members’ opinions regarding the 

credibility of the appellant’s explanation for the positive drug test constituted new and material 

information to which the appellant had not been given a chance respond. In addition, the court 

found that due process required the appellant to have an opportunity to respond to the opinions of 

the medical professional family members because it is “constitutionally impermissible to allow a 

deciding official to receive additional material information that may undermine the objectivity 

required to protect the fairness of the process,” and family members are “arguably the most 

influential people in anyone’s life.” The court remanded the matter to the arbitrator to determine the 

appropriate remedy.

Removal/Chapter 75

Coy v. Department of the Treasury, 43 F.4th 1334 (Fed. Cir. 2022): The AJ reversed the appellant’s 

removal on procedural grounds and ordered the agency to provide him interim relief if a petition for 

review was filed. Both the agency and the appellant filed petitions for review with the full Board, and 

the agency restored the appellant to a non-duty employed status as interim relief. While the petitions 

for review were pending, the agency removed the appellant a second time based on the same charges 

and specifications. The appellant appealed the second removal on the merits and did not allege that 

the second removal involved the same procedural defects as the first removal. The AJ sustained the 

second removal, noting that the agency was permitted to initiate a second removal action while a 

petition for review of the first removal action remained pending. On appeal to the Federal Circuit, 

the court affirmed the Board’s decision, finding that the second removal was permissible while the 

first removal was still pending before the Board because the second removal cured the procedural 

deficiency of the first removal and did not evade the first decision. The court further found that the 

AJ did not abuse her discretion in finding that the appellant’s transmittal of confidential employee 

personnel data to non-agency counsel in response to discovery requests in another appeal matter 

constituted “personal use” as used in the specifications to the charge.

Valles v. Department of State, 17 F.4th 149 (Fed. Cir. 2021): Despite the appellant’s 2018 fully 

successful performance appraisal, in 2019 the agency proposed and effected his removal on four 

charges of misconduct occurring between July 2018 and February 2019. The AJ found that the 
33 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

agency proved all the charges and established a nexus between the misconduct and the agency’s 

ability to carry out its mission. The AJ found no inconsistency between the 2018 favorable 

evaluation and the charges because the issue was misconduct, not performance. The AJ determined 

that the agency considered the relevant Douglas factors and upheld the removal penalty as 

reasonable. On appeal, the court held that misconduct and performance overlap, and agreed with 

the appellant that the Board should have considered the prior successful performance appraisal. 

However, it found that the Board’s disregard of the appraisal was not reversible error and that the 

appellant failed to meet his burden to show that considering it would likely have led to a different 

result. The court noted that at the agency and before the Board, the appellant did not dispute that 

any of the charged misconduct occurred. The court also noted that a number of the specifications 

of misconduct occurred after the evaluation period. With respect to the penalty, the court also 

found that the appellant failed to show harmful error, citing the deciding official’s thorough analysis 

of the Douglas factors and the Board’s recognition of the repetitive nature of the misconduct. Thus,

the court concluded that the Board’s decision was supported by substantial evidence and affirmed 

the decision. 

Removal/38 U.S.C. § 714

Bannister v. VA, 26 F.4th 1340 (Fed. Cir. 2022): The VA proposed to remove the appellant for 

conduct unbecoming a Federal employee. The agency then issued a decision mitigating the proposed 

penalty to a 30-day suspension, stating that the charges against the appellant were supported by 

substantial evidence. The appellant appealed her suspension to MSPB, and an AJ issued an initial 

decision affirming the suspension, also finding that the charges were supported by substantial 

evidence. The appellant then appealed the AJ’s decision to the Federal Circuit, arguing that the 

court’s 2021 Rodriguez decision required that the agency’s proposed discipline be supported by a 

preponderance of the evidence before the agency could issue the discipline, and that the substantial 

evidence standard under 38 U.S.C. § 714 only applies to MSPB’s review of agency decisions. The 

court agreed, holding that it was error for the agency to apply a substantial evidence standard in 

determining whether to issue its suspension to the appellant. The court thus vacated and remanded 

the part of the Board’s decision addressing whether the agency proved its charge. 

Bryant v. VA, 26 F.4th 1344 (Fed. Cir. 2022): The VA proposed to remove the appellant for conduct 

unbecoming a Federal employee. The agency then issued a decision sustaining the proposed 

removal, stating that the charges against the appellant were supported by substantial evidence. The 

agency’s final decision did not, however, reference whether the agency performed a Douglas factor 

analysis when determining whether to remove the appellant. The appellant appealed his removal to 

MSPB, and an AJ issued an initial decision affirming the removal, also finding that the charges were 

supported by substantial evidence. The AJ’s decision also did not discuss the Douglas factors. The 

appellant appealed to the Federal Circuit, arguing that the court’s 2021 Rodriguez decision required 

that the agency’s proposed discipline be supported by a preponderance of the evidence before the 

agency could issue the discipline, and that the substantial evidence standard under 38 U.S.C. § 714 

only applies to the Board’s review of agency decisions. The appellant also argued to the court that its 

2021 Connor decision required that both the agency and the Board engage in a Douglas factor analysis 

prior to rendering a decision. The court agreed with both arguments. The court found that the 

agency’s determination was in error because the deciding official used a substantial evidence, rather 

than a preponderance of the evidence, standard in determining whether the charges were proved. 

The court also held that the decision’s lack of a Douglas factor analysis meant that the penalty 

analysis was legally erroneous. The court thus vacated those portions of MSPB’s decision and 

remanded the matter back to MSPB for further consideration. 
34 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Whistleblowing/Carr Factors

Rickel v. Department of the Navy, 31 F.4th 1358 (Fed. Cir. 2022): The appellant was removed from his 

position as Assistant Chief of Training for the First Coast Navy Fire and Emergency Services in 

the Department of the Navy based on a charge of failure to follow instructions. The appellant 

appealed his removal to the Board, arguing that the removal was in reprisal for his protected 

whistleblower disclosures. During the Board hearing, neither party advanced any evidence 

regarding Carr factor 3, i.e., the treatment of similarly situated employees who did not engage in 

protected whistleblowing activity. Before the court, the appellant argued that the agency’s failure 

to produce any evidence showing Carr factor 3 weighed in favor of the agency meant that the 

agency could not establish by clear and convincing evidence that it still would have removed the 

appellant in the absence of his protected whistleblower disclosures. The court disagreed. The court 

held that there is no requirement that an agency produce evidence for each of the three Carr 

factors, and that the absence of evidence in support of any Carr factor is not necessarily fatal to an 

agency’s case. The court declined to create such a production requirement for the agency and 

affirmed the appellant’s removal.

Whistleblowing/Jurisdiction

Knapp v. MSPB, 2021 WL 5352874 (Fed. Cir. 2021): The appellant was a civilian employed by the 

Army as a Victim Advocate for cases of sexual assaults and harassment. In reporting such violations, 

she emailed classified information over unclassified networks, which is referred to as spillage. In 

response, Army Special Operation Command officials ordered removal of her computer, suspended 

her security clearance, placed her on administrative leave, and proposed her indefinite suspension 

from duty and pay status. Ms. Knapp then filed a complaint with OSC, alleging that she made 

several whistleblowing disclosures, and, shortly thereafter, she was accused of spillage and 

indefinitely suspended from duty and pay status. After OSC terminated its investigation, she filed an 

appeal with the Board, alleging several reprisal actions by the agency. The AJ dismissed her appeal 

for lack of jurisdiction, finding that Ms. Knapp’s allegations arose from the agency’s finding that she 

mishandled classified actions and that he was precluded from reviewing allegations of reprisal when 

such claims relate to agency determinations regarding security clearances. On appeal, the court noted 

the Supreme Court’s holding in Egan that the Board does not have authority to review the substance 

of an underlying security clearance determination while reviewing an adverse action because the 

granting or revoking of such a decision is a judgment call exclusively retained by the executive 

branch. Because all the personnel actions against the appellant related to her access to classified 

information and spillage, and thus fell within the ambit of Egan, the court found it could not provide 

the relief she seeks. 

Smolinski v. MSPB, 23 F.4th 1345 (Fed. Cir. 2022): The appellant, Dr. Smolinksi, was a Lieutenant 

Colonel in the Army who worked as a visiting provider at an Army hospital. The appellant’s wife, 

Mrs. Smolinski, submitted a patient complaint regarding her care at the hospital that made its way to 

the hospital’s commander. Subsequently, the hospital’s commander allegedly behaved 

inappropriately towards Mrs. Smolinski at a hospital holiday party. The couple testified regarding 

this misconduct during a formal investigation. After the Army withdrew a job offer to 

Dr. Smolinski, he alleged that the Army retaliated against him for his wife’s patient complaint, his 

testimony in the internal investigation, and his OSC complaints. MSPB dismissed the appeal because 

it found that Dr. Smolinski had not made a nonfrivolous allegation that these statements were 

protected disclosures. The Federal Circuit affirmed MSPB’s decision in part, as to the conclusions 

that the allegations about Mrs. Smolinski’s patient complaint did not contain sufficient factual matter 

to state a plausible claim that it was a protected disclosure and that Dr. Smolinski had failed to 
35 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

preserve his claims that the Army had retaliated against him for his OSC complaints. Regarding the 

investigation testimony, however, the court examined the content of Dr. Smolinski’s testimony 

(which he had referenced but not included in his OSC complaints) and ruled that he had made a 

nonfrivolous allegation that his testimony disclosed both an abuse of authority and a violation of 

law, rule, or regulation. The court held that the hospital commander’s alleged sexual harassment of 

Mrs. Smolinski and verbal harassment of Dr. Smolinski were abuses of authority under 5 U.S.C. 

§ 2302(b)(8) because the commander was Dr. Smolinski’s superior officer, the alleged unwanted

touching and verbal harassment affected Mrs. Smolinski and Dr. Smolinski’s rights, and the

commander’s alleged misconduct was unrelated to the Army’s mission. The court further ruled that

the commander’s alleged misconduct could constitute a violation of laws, rules, or regulations

because statute and regulations prohibit Army members from engaging in bullying, harassment, and

unwanted sexual comments and gestures. The court also held that the Board could exercise

jurisdiction over Dr. Smolinski’s allegations that the Army had retaliated against him for

participating in the internal investigation under 5 U.S.C. § 2302(b)(9).

Whistleblowing/Substantial Evidence

Standley v. Department of Energy (DOE), 26 F.4th 937 (Fed. Cir. 2022): The appellant, who was a 

general engineer employed by DOE, brought an IRA appeal after he was not selected for several 

director positions at the agency. He alleged that the non-selections were retaliation for his 

opposition to the DOE’s efforts to defund and cease work on a space-based nuclear detection 

program. The Board denied corrective action because it found that the appellant had not proven 

that the agency perceived him as a whistleblower. On appeal to the Federal Circuit, the appellant 

argued that the Board failed to consider certain evidence that the DOE perceived his activities to 

be protected and that the DOE had acted fraudulently. The Federal Circuit affirmed the Board’s 

decision because each of the AJ’s factual findings were supported by substantial evidence, 

notwithstanding that a hypothetical trier of fact could have reasonably reached different 

conclusions based on the record evidence. 

Significant Opinions Issued by Other Circuit Courts 

Manivannan v. DOE, 42 F. 4th 163 (3d Cir. 2022): A former scientist for DOE, who had resigned his 

employment, filed a lawsuit asserting Privacy Act and Federal Tort Claims Act violations stemming 

from the agency’s disclosure of records to state prosecutors, alleged negligence in conducting an 

internal investigation, and refusal to return his personal property. The magistrate judge dismissed his 

claims for lack of subject matter jurisdiction, finding them precluded by the CSRA. In a precedential 

decision, the Third Circuit reversed and remanded in part, rejecting the government’s claim that the 

CSRA bars Federal courts from exercising jurisdiction over any claim arising in the Federal 

employment context. Instead, the court found that the CSRA only precludes a court from 

addressing an otherwise reviewable claim if that claim challenges an employment matter covered by 

the statute. The court found that Congress carefully defined the types of actions subject to the 

CSRA’s review scheme, to include specific covered personnel actions. The court cited Elgin v. 

Department of Treasury, 567 U.S. 1 (2012), for the proposition that whether the CSRA prevents a 

Federal action turns on the type of the employee and the challenged employment action. 

Accordingly, the court agreed that the claims based on the agency’s internal investigation were 

precluded by the CSRA, as the internal investigation qualified as a personnel action. The court found 

that the remaining claims, including allegations of collusion between an agency lawyer and state 

prosecutors and a refusal to return the appellant’s personal property, were not personnel actions 

covered by the CSRA, and, therefore, those claims were not precluded by the CSRA. The court 

therefore affirmed the magistrate judge’s dismissal of the claims tethered to employment conduct 
36 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

covered by the CSRA and reversed as to the claims based on the agency’s alleged cooperation with 

state prosecutors and failure to return the appellant’s property. The court remanded for the 

magistrate judge to consider whether the remaining claims could withstand the arguments made in 

the government’s motion to dismiss.

Zachariasiewicz v. DOJ, 48 F.4th 237 (4th Cir. 2022): The appellant filed an MSPB appeal alleging that 

the agency failed to select him for numerous promotions and subjected him to a hostile work 

environment because of his sex, race, whistleblowing disclosures, and prior equal employment 

opportunity activity. The AJ dismissed the discrimination and EEO reprisal claims for lack of 

jurisdiction in the absence of an otherwise appealable action but found MSPB jurisdiction over the 

appellant’s exhausted whistleblower reprisal claims as an IRA appeal. Once 120 days had passed 

without a decision being issued, the appellant attempted pursue his claims in U.S. district court 

pursuant to 5 U.S.C. § 7702(e)(1)(B), which allows an individual to file a civil action in U.S. district 

court under listed antidiscrimination statutes if MSPB has not rendered a judicially reviewable 

decision on his mixed-case appeal within 120 days from the date of filing. However, the district 

court found that it lacked jurisdiction over the appellant’s claims because they did not involve any 

“serious adverse action” directly appealable to MSPB and, therefore, did not amount to a mixed case 

appealable to the Federal district courts. Zachariasiewicz v. DOJ, 395 F. Supp. 3d 734 (E.D. Va. 2019). 

On appeal, the Fourth Circuit agreed that the district court lacked jurisdiction over the appeal as a 

mixed-case appeal, explaining that an IRA appeal cannot form the basis of a mixed-case appeal 

because the claims are not directly appealable to MSPB and instead first must be exhausted before 

OSC. Nonetheless, the Fourth Circuit remanded the matter to the district court for it to consider in 

the first instance whether it could entertain the appellant’s discrimination claims under Title VII 

instead of as a mixed-case appeal. 
37 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2022

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service and 

merit systems. MSPB’s high-quality, objective studies provide value by assessing current 

management policies and practices, identifying innovative and effective merit-based approaches to 

current workplace issues, and making recommendations for improvements. Overall, this benefits 

American taxpayers in terms of decreased Government-wide costs and increased confidence that the 

Government is doing its job and appropriately managing the workforce.

Publications Issued

Issues of Merit Newsletter

MSPB published three newsletter editions with articles on a variety of HC topics covering a

combined total of 8 MSPs and 3 PPPs. Newsletter topics included workplace aggression, reforming 

Federal hiring, hiring students and recent graduates, transitioning back to the office, using retirement 

to retain talent, the effect of competencies on agency culture, what has changed in the HR field, stay 

interviews, using subject matter experts to prevent perceptions of favoritism, recruitment apps, postsurvey action planning, creating an ethical work environment, identifying why Federal employees 

want to quit, rehiring retired employees, and college recruitment. 

Merit Systems Studies Reports

MSPB completed two study reports this FY, one of which (U.S. Merit Systems Protection Board Research

Agenda 2022-2026) was published prior to the end of the FY. The other study report (Sexual

Harassment in Federal Workplaces: Understanding and Addressing the Problem) was submitted for Board

approval in FY 2022 and published in the first quarter of FY 2023.

The report entitled U.S. Merit Systems Protection Board Research Agenda 2022-2026 articulates a research

agenda that broadly defines the topics that MSPB considers most important and promising for study

in the near term. MSPB conducted extensive stakeholder outreach to inform this effort, including

email invitations; a website survey; a press release; a Federal Register notice; and interviews with a

wide variety of targeted stakeholders, including CHCOs. Over 300 ideas were received and rated on

centrality, timeliness, ambition, and practicality. Forty-four topics across six major areas of research

were selected to drive MSPB research through 2026: defending merit; building an effective

workforce; recruitment and hiring; pay and performance management; supervision and leadership;

and OPM oversight. A press release, social media posting, emails to stakeholders, and an article for

the September IoM newsletter were used to disseminate the research agenda.

The report entitled Sexual Harassment in Federal Workplaces: Understanding and Addressing the Problem was

drafted in FY 2022 and published in early FY 2023. This report evaluates the prevalence of sexual

harassment in Federal workplaces and Federal agency efforts to prevent and respond to such

harassment. This study presents results from MSPB’s 2016 MPS, which indicates that approximately

21% of women and almost 9% of men responding to the MPS had experienced one or more forms

of sexual harassment during the preceding two years, with rates varying by agency.

Merit Principles Survey and Other Surveys Administered

The 2021 MPS dataset and data documentation were published on the MSPB website with links on

Data.Gov added in September 2022. In addition to the dataset, to assist analysts, a series of 

documents were published including: 2021 MPS Design and Methodology; Fact Sheet for Federal 
38 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

Agencies; Fact Sheet for Federal Employees; Summary of Survey Items; 2021 Survey Instrument; 

and Data Dictionary/Codebook. Information and data from the 2021 MPS are also available at 

www.mspb.gov/foia/SurveyData.htm.

MSPB finalized the design and instrument for an HR Workforce Survey in preparation for 

implementation in FY 2023. The purpose of the survey is to learn about the professional

experiences of HR specialists and assistants so MSPB can identify strategies to improve HR

capabilities and better support HR staffs Government-wide. The survey is intended to go to all 

permanent, full-time, civilian HR specialists (0201 series) and assistants (0203 series) who work in 

Cabinet-level agencies and independent agencies with more than 10,000 employees.9

Merit Systems Studies Outreach and External References

During FY 2022, MSPB studies staff conducted three outreach events with Federal organizations

about studies research briefs and the merit systems, in general. In FY 2022, MSPB’s merit systems 

studies publications or use of survey data were referenced more than 30 times in over 20 sources. 

They included trade print or online sources, online newsletters, scientific research journals or 

conference presentations, a printed book, congressional testimony, Government Accountability 

Office (GAO) reports, and good government groups. Notable citations to MSPB’s studies work 

include GAO reports on direct hiring in future emergencies and on sexual harassment in the VA; 

academic articles in public policy journals citing the use of 2016 MPS data or published merit 

systems study reports; and the Partnership for Public Service’s report, Trustworthy: Increasing Civil 

Servants’ Trust at Work, citing four separate study reports.

9 Administration of the HR Workforce Survey began on February 27, 2023.
39 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

REVIEW OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT

As required by statute,10 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs and free from PPPs.11 As Congress 

intended, this annual analysis is based on those OPM activities that the Board decides are 

significant,12 and is a general review of the policies and effectiveness of OPM, not an investigation of 

the internal operation of OPM and its employees.13 In addition, MSPB has authority to review OPM 

rules and regulations upon request, or on its own motion, to determine if the regulations or the 

implementation of the regulations would cause a person to commit a PPP.14

Review of OPM Significant Actions

OPM’s actions may broadly affect the Federal workforce, multiple Federal agencies, and applicants 

for Federal jobs. Each of OPM’s actions listed below has the potential to impact the effectiveness 

and efficiency of the Federal workforce (MSP 5) 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. Additional MSPs that may be affected by a particular OPM action 

are noted in the discussion of each action.15

This review comments on OPM’s leadership and context, specifically the continued existence of a 

Senate-confirmed OPM Director and OPM’s new Strategic Plan. Commenting on pertinent OPM 

management issues is necessary to describe the environment in which OPM’s mission offices 

operate. In the past, we have commented on such issues as OPM’s funding and focus, organization 

structure, reliance on IT, and lack of Senate-confirmed leadership. OPM significant actions 

undertaken in FY 2022 that we comment on below relate to: skills-based hiring, the SES pipeline, 

telework, collective bargaining, and the Federal Workforce Priorities Report.

OPM Leadership and Context

OPM Director. During FY 2022, OPM Director Kiran Ahuja began her second year as OPM 

Director. Stable political leadership is critical for OPM to identify priorities, develop policy 

proposals, and undertake new initiatives. Such leadership is also essential to define and justify core 

civil service values and policies; articulate the need for changes in Federal HR policies or workforce 

management priorities; and shepherd those changes or priorities through the legislative, regulatory, 

and implementation processes. 

OPM Strategic Plan for Fiscal Years 2022-2026. OPM released its Strategic Plan for FYs 2022-

2026 in March 2022. The plan contains four strategic goals that articulate what OPM aspires to 

achieve by executing its mission:

10 5 U.S.C. § 1206.

11 5 U.S.C. § 2301(b) and 5 U.S.C. § 2302(b), respectively.

12 Committee on Conference, Civil Service Reform Act of 1978, Conference Report to Accompany S. 2640, 95th Cong., 2nd Sess., 1978, H. Rept. 

No. 95-1717, p. 133.

13 Senate Committee on Governmental Affairs, Civil Service Reform Act of 1978, Report to Accompany S. 2640, 95th Cong., 2nd Sess., 

1978, S. Rept. No. 95-969, p. 32.

14 5 U.S.C. § 1204(a)(4) and 5 U.S.C. § 1204(f)(1-4) at https://www.govinfo.gov/content/pkg/USCODE-2011-

title5/html/USCODE-2011-title5-partII-chap12-subchapI-sec1204.htm

15 This analysis is not a comprehensive digest of OPM activities, as OPM has many programs and responsibilities that do not directly 

affect MSPs and PPPs. Also, this summary does not discuss in detail every OPM significant action that was underway or completed in 

FY 2022. Instead, it should be read in conjunction with previous MSPB reviews of OPM’s significant actions. 
40 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

• Position the Federal Government as a model employer.

• Transform OPM’s organizational capacity and capability to better serve as the leader in

Federal HC management.

• Create a human-centered customer experience by putting the needs of OPM’s customers at

the center of OPM’s workforce services, policy, and oversight.

• Provide innovative and data-driven solutions to enable agencies to meet their missions.

The major management priorities and challenges that OPM identified are outlined in the second goal 

above to transform OPM’s organizational capacity and capability to better serve as the leader in 

Federal HC management:

• Build the skills of the OPM workforce and attract skilled talent.

• Improve OPM’s relationships and standing as the HC management thought leader.

• Improve OPM’s program efficacy through comprehensive risk management and contract

monitoring across the agency.

• Establish a sustainable funding and staffing model for OPM that better allows the agency to

meet its mission.

• Modernize OPM IT by establishing an enterprise-wide approach, eliminating fragmentation,

and aligning IT investments with core mission requirements.

• Promote a positive organizational culture where leadership drives an enterprise mindset,

lives the OPM values, and supports employee engagement and professional growth.

OPM has stated that it, along with its partners in OMB and across the Administration, is poised to 

build on its role as a strategic leader for Federal HC management and policy. Through its strategic 

plan, OPM will focus on targeted efforts that span a range of critical elements within the agency,

including people, resources, IT, and customer service, to be of greatest service to the American 

people. Specific areas of focus include:

• Positioning the Federal Government as a model employer;

• Driving a data-driven approach to recruitment, assessment, and hiring strategies that

strengthen and support diversity, equity, inclusion, and accessibility across the Federal

Government;

• Improving data collection, use, and sharing to support agencies in promoting a more

equitable, engaged, and empowered workforce that champions unionized voices;

• Supporting Federal agencies by attracting early career talent;

• Equipping Federal workers with the ability to build new skills; and

• Developing a strategic vision for the Federal Government to improve the future of work

informed by the lessons learned during the pandemic.

OPM’s Strategic Plan for FYs 2022-2026 differs from its previous Strategic Plan in a number of 

ways. For example, OPM’s Strategic Plan for FYs 2018-2022 had as its first goal to transform hiring, 

pay, and benefits across the Federal Government. 

One objective under the first goal of OPM’s new Strategic Plan (positioning the Federal 

Government as a model employer) includes OPM developing a “government-wide vision and 

strategy and implement[ing] policies and initiatives that embrace the future of work and position the 

federal government as a model employer with respect to hiring, talent development, competitive pay, 

benefits, and workplace flexibilities.” The performance measures associated with this objective 
41 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

include the percentage of “CHCOs who report they have the necessary guidance and resources from 

OPM to inform their future of work planning” and “find the services from OPM to inform their 

future of work planning helpful.” In sum, OPM’s Strategic Plan goals appear to be in accord with 

MSPs and free from PPPs.

New Significant Actions

Skills-Based Hiring

In June 2020, President Trump signed Executive Order (EO) 13932, Modernizing and Reforming the 

Assessment and Hiring of Federal Job Candidates. EO 13932, drawing on the principle that Federal hiring 

should be based on merit, argues that the best way to achieve that is through skills- and competencybased assessments. Specifically, the EO contends that, when making hiring decisions, the Federal 

Government relies too much on educational attainment and too little on direct assessment of 

candidates’ actual skills. To remedy this deficiency and to modernize Federal hiring, OPM was 

instructed to: (1) review and revise job classification and qualification standards to eliminate 

unnecessary degree requirements, and (2) improve the use of assessments in the Federal hiring 

process to focus on those that measure applicant skills rather than relying on self-reported 

information and level of education. 

The EO required OPM to work with agency heads to ensure that, within 180 days of the EO, 

agencies assess job candidates in a manner that does not solely rely on educational attainment. OPM 

issued its plan and timeline to implement EO 13932 in July 2020,16 and, two months later, it issued a 

list of the occupational series with positive education requirements for agency comment.17 OPM 

twice extended the date for final implementation of the requirements of the EO, ultimately to 

December 31, 2022.18

OPM issued final guidance regarding EO 13932, including an updated “General Schedule 

Qualifications Operating Manual;” “Qualifications, Assessment, and Hiring Frequently Asked 

Questions;” and a new “Guide to Better Occupational Questionnaires,” in May, 2022.19 This 

guidance noted that the Biden-Harris Administration fully supports expanding skills-based hiring for 

Federal jobs, which helps hiring managers focus on what job candidates know how to do, not where 

they learned it. The guidance noted that all relevant skills for the role at hand should be valued, 

whether they are learned in the classroom, on the job, or on one’s own.

Significance 

There are a number of MSPs and PPPs that relate to hiring and applicant assessment. For example, 

MSP 1 requires that recruitment be from qualified individuals to achieve a workforce representative 

of society, and MSP 2 notes that applicants should receive fair and equitable treatment. PPP 1

prohibits discrimination for or against any applicant for employment, and PPP 4 prohibits 

16 OPM Memorandum for Heads of Executive Departments and Agencies, Implementation of EO 13932; Determining Qualifications and the 

Use of Assessment Tools When Filing Positions, July 31, 2020.

17 OPM Memorandum for CHCOs, Draft General Schedule Qualifications Policy – EO 13932; Modernizing and Reforming the Assessment and 

Hiring of Federal Job Candidates, September 25, 2020.

18 See OPM Memoranda for Heads of Executive Departments and Agencies: Interim Guidance – E.O. 13932; Modernizing and Reforming 

the Assessment and Hiring of Federal Job Candidates, May 7, 2021; and Updated Interim Guidance – E.O. 13932; Modernizing and Reforming the 

Assessment and Hiring of Federal Job Candidates, December 29, 2021.

19 OPM Memorandum for Heads of Executive Departments and Agencies, Guidance Release – E.O. 13932; Modernizing and Reforming the 

Assessment and Hiring of Federal Job Candidates, May 19, 2022.
42 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

influencing a person to withdraw from competition for any position for the purpose of improving 

or injuring the prospects of any other person for employment. 

The practical effects of EO 13932’s policy change, on both applicants and hiring decisions, will 

depend greatly on how much agency practices change. Although OPM establishes general 

qualification/entry requirements and general rules and processes for competitive examination, 

agencies have delegated authority to apply those requirements, rate and rank applicants, and select 

among applicants. For example, even in the absence of a requirement for a degree or specific 

education to qualify for a position, a hiring manager might prefer to consider or hire individuals with 

a degree or particular credentials. MSPB does not know the extent to which agencies or managers 

hold or act on such preferences. However, MSPB’s research has found that agencies do often use 

assessments that are not the best predictors of performance. 

For many years MSPB has urged agencies to use valid applicant assessments to help ensure that 

Federal employees are selected based on their ability to perform the job and not on other nonmerit factors.20 Hiring based on ability rather than other factors ensures that agencies can carry out 

their missions to best serve the public. MSPB has noted in the past that agencies have relied 

heavily on evaluations of training and experience (T&E) (including resumes, occupational 

questionnaires, and educational level) to determine applicant qualifications. In a previous MSPB 

survey of Federal HR staff, 40 percent said that their agencies used educational level “to a great 

extent” to assess applicants.21

Agencies commonly use T&E assessments because they are inexpensive to develop, widely available, 

and relatively convenient to administer. T&E assessments often look at the quantity—rather than 

the quality—of training or experience that an applicant possesses. They also tend to rely on selfreported information to determine applicants’ level of expertise. Due to these factors, T&E 

assessments are usually less accurate than assessments designed to more directly measure expertise, 

such as job tests or simulations. This means agencies are often using less valid assessments that are 

not good predictors of future job performance. To the extent that EO 13932 and OPM’s 

implementing guidance reduces agency reliance on less valid assessments, such as educational 

attainment, better outcomes should be achieved in agency hiring.

We note that the EO states that agencies should not rely solely on educational attainment in assessing 

job applicants. MSPB has long recommended that agencies use a multiple-hurdle approach when 

evaluating job candidates. This type of approach can help avoid poor selection by using a set of 

relatively valid assessment procedures to manage the candidate pool and narrow the field of qualified 

candidates. This means that when agencies pair less-valid T&E assessments with other, more valid 

methods, better results will be achieved.

Ideally, assessment procedures should be selected and sequenced based on cost and benefit. 

Methods that are less costly to administer should be used in the beginning stage of the assessment 

process when the candidate pool is largest. Methods that are more costly to administer should be 

used toward the end of the process when fewer applicants need to be assessed. The multiple-hurdle 

approach may take more time, effort, and money than just reviewing T&E or conducting an 

unstructured interview. If conducted properly, the multiple-hurdle approach can increase selecting 

officials’ ability to predict the job success of an applicant. This should increase the quality of the hire 

20 See MSPB, Improving Federal Hiring through Better Assessment, July 2018; MSPB, Evaluating Job Applicants: The Role of Training and 

Experience in Hiring, January 2014; and MSPB, Reforming Federal Hiring--Beyond Faster and Cheaper, September 2006.

21 MSPB, The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs, January 2015, p. 22.
43 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

and decrease the costs associated with a poor performer (e.g., training, adverse actions, re-recruiting 

for the position).

However, money and resources remain a fundamental hurdle to fulfilling the requirements of EO 

13932 and OPM’s implementing guidance. MSPB believes there is a more optimal way to ensure 

that agencies have access to high-quality assessments. Over 20 years ago we noted that “[a]gencies 

vary widely in their ability to develop and apply good...assessment instruments. Agencies with little 

in-house expertise in this field, and little or no discretionary money to pay OPM or anyone else for 

the needed expertise, are at a distinct disadvantage.”22 In sum, OPM’s implementing guidance 

appears to be in accord with MSPs and free from PPPs.

SES Pipeline

In March 2022, OPM released the “Executive Women in Motion (EWIM): Pathways to the SES

Toolkit.”

23 This program promotes the advancement of both women and men in the SES through 

interagency mentoring, collaboration, and knowledge-sharing sessions that are designed to increase 

employees’ interest in pursuing a career in the SES. In collaboration with agencies and senior 

leaders, OPM developed the EWIM toolkit to provide guidance and templates for agencies to host 

EWIM sessions independently with general consultation from OPM. The EWIM program is a 

leadership education and recruitment strategy implemented by OPM to encourage all senior 

employees with leadership potential to pursue a career path in the SES.

Significance

For a list of MSPs and PPPs that relate to hiring and assessment within the SES, see the 

“Significance” section in the Skills-Based Hiring discussion, above. According to OPM, as of June 

2021, there were a total of 8,025 SES members: 63 percent were male (5,055) and 37 percent were 

female (2,970). OPM hopes that agency hosting of programs such as EWIM will help expand 

opportunities to increase diversity among Federal senior leaders. Programs such as the EWIM can 

increase interest among senior Federal employees to pursue employment in the SES. In sum, we find 

that the EWIM is in accord with MSPs and free from PPPs.

MSPB research suggests that to increase the diversity of the SES, there are issues that need to be 

addressed long before agencies attempt to entice senior Federal employees to pursue employment in 

the SES. Over the years, the differences between women and men in important characteristics such 

as education and experience in the Federal workplace have diminished. That trend, combined with a 

continued interest in career advancement among women in the Federal Government, bodes well for 

future gains in the representation of women in the SES. Much credit is due to agency efforts to 

recruit and advance women, to reduce the incidence of prohibited discrimination, to provide greater 

flexibility in work arrangements, and to focus on contributions and skills—rather than on indirect 

and unreliable indicators of performance and dedication, such as time spent in the office or irrelevant 

factors such as marital status and family responsibilities—when evaluating and promoting 

employees.

24

Still, progress toward full equality, as evidenced by the SES gender representation presented above, is 

far from complete. MSPB research has shown that, first, occupational differences persist between 

22 MSPB, Assessing Federal Job Seekers in a Delegated Examining Environment, December 2001, p. 31; and MSPB’s Research Brief, Improving 

Federal Hiring through Better Assessment, July 2018.

23 OPM Memorandum for CHCOs, Executive Women in Motion (EWIM): Pathways to the SES Toolkit, March 17, 2022.

24 MSPB, Women in the Federal Government: Ambitions and Achievements, May, 2011.
44 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

women and men in both American society and Federal workplaces. Such occupational differences 

can complicate recruitment and create glass walls—barriers to movement across organizations, 

functions, or occupations—within the Federal workforce, resulting in different opportunities for 

women and men even if they are comparable in terms of years of experience and performance. 

Second, agencies have increased their use of external hiring and upper-level hiring to fill positions in 

professional and administrative occupations. For a variety of reasons, women are generally less likely 

to be hired when an agency fills a position through external (as opposed to internal) recruitment or 

fills a position at a higher level instead of at the entry level.

The glass ceiling in the Federal Government—those invisible systemic barriers to the advancement 

of women to senior executive positions—cannot be shattered in a single blow. It can only be 

dismantled over time, through the merit-based hiring and advancement of individual employees. 

However, there are limits to what Federal agencies can or should do to help employees succeed in 

their jobs and careers. Advancement to the highest levels requires dedication and effort from the 

employee, not only to perform well in the current position, but also to set career goals, identify and 

pursue developmental and promotional opportunities, and acquire and sharpen the competencies 

needed to compete successfully for those opportunities.

MSPB has recommended several actions that have special relevance to the employment and 

advancement of women: encouraging entry into occupations where there are issues of 

underrepresentation, or gender balance; assuring that employees have the qualifications (e.g., 

competencies, relevant job skills, or experience) needed for short- and long-term job success; and 

recruiting and preparing employees for higher-level jobs, either in a technical contributor or 

supervisory/leadership capacity.

MSPB’s recommendations are organized into the following categories:  

• Recruitment and Selection—actions to generate interest in Federal careers, build diverse and 

qualified applicant pools, and select employees who are likely to perform well, both in the 

short and long term.

• Development—actions to help employees develop competencies required for entry or 

advancement, through on-the-job learning, classroom training, or other means.

• Communication and Support—actions to educate employees on requirements for job 

success and advancement, help employees identify career goals, and provide employees with 

feedback on their performance, strengths, and developmental needs.

• Mentoring and Networking—actions to help employees establish relationships that can 

advance their development and careers.

The original vision of the SES was that leadership skills would be the primary requirement for entry. 

This vision was consistent with research that suggests technical skills become less important as 

individuals ascend the organizational hierarchy. Our research has shown, however, that technical 

skills also are needed for many SES positions.

25 In a previous survey of career members of the SES, 

less than one-fourth (21 percent) agreed that their positions could be filled using just the Executive 

Core Qualifications (ECQs) without requiring additional technical qualifications.26 This perception is 

supported by findings from a previous analysis of all permanent annual career SES vacancy 

25 MSPB, Training and Development for the SES: A Necessary Investment, December 2015, p. 12.

26 OPM has identified five ECQs: Leading Change, Leading People, Results Driven, Business Acumen, and Building Coalitions. The 

ECQs are required for entry to the SES and are used by many departments and agencies in selection, performance management, and 

leadership development for management and executive positions.
45 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

announcements. Approximately 80 percent of the announcements required applicants to describe at 

least one technical competency in addition to the ECQs to be considered qualified for the position. 

While technical credibility is a competency under one of the ECQs, almost one-quarter (23 percent) 

of career senior executives consider a major portion (at least 46 percent or more) of their work to be 

of a technical/professional nature. Perhaps this divide between the original vision of the SES and 

current practice occurs because the work environment has changed since the SES was created. For 

instance, the types of work performed in the Federal Government have become increasingly 

knowledge-based, which may result in a continued need for possessing specialized technical skills or 

advanced education to effectively lead others performing such work. It could also be that SES 

members lack appropriate staff and must perform technical work themselves.

In any event, one way to address this divide may be for OPM to provide agencies with improved 

tools and flexibilities to better leverage SES and senior leader/scientific or technical (SL/ST)

allocations, distinguishing the SES pipeline for those pursuing senior leadership positions from the 

SL/ST pipeline for those interested in providing senior technical expertise. This would solidify the 

SES pipeline’s focus on leadership competencies while providing agencies the flexibility to address

pressing technical challenges through SL/ST appointments, creating a win-win for agencies and a 

broader spectrum of candidates, alike.27

Telework and Hybrid Workplaces

Updated Telework Guidance. In November 2021, OPM released the 2021 Guide to Telework and 

Remote Work in the Federal Government: Leveraging Telework and Remote Work in the Federal Government to 

Better Meet Our Human Capital Needs and Improve Mission Delivery.

28 This updated guidance replaced 

telework guidance OPM published ten years earlier and provides agencies with practical resources 

and information to help contextualize the continued evolution of telework as a critical workplace 

flexibility. The guide is made up of two distinct parts that include (1) an overview of telework 

arrangements, laws, agency roles and responsibilities, and guidance to develop telework policies, 

and (2) a review of implications, considerations, and strategies for the appropriate use of remote 

work arrangements.

Performance Management in Hybrid Workplaces. In February 2022, OPM issued tips for 

managing performance in a hybrid workplace.29 A hybrid workplace refers to a workplace that 

incorporates a mix of employees who are working in the office and those who are working from 

other locations. The dramatic increase in the number of Federal employees teleworking and working 

remotely during the COVID-19 pandemic demonstrated the need for agencies to be equipped to 

manage both in-person and teleworking employees’ performance equitably and effectively. To 

support agencies in preparing for the workforce of the future, OPM issued these performance 

management tips for a “hybrid” workplace. OPM noted that effective performance management 

requires engagement and commitment from individuals at all levels of an agency. As such, the 

performance management tips were tailored to assist non-supervisory employees, supervisors, and 

leadership throughout the various phases of the performance management cycle. OPM stated that 

the workforce of the future will rely heavily on technology to facilitate effective communication and 

27 See https://www.opm.gov/policy-data-oversight/senior-executive-service/scientific-senior-level-positions/

28 OPM Memorandum for Heads of Executive Departments and Agencies, 2021Guide to Telework and Remote Work in the Federal 

Government, November 12, 2021.

29 OPM Memorandum for HR Directors, Issuance of Performance Management Tips for a Hybrid Workplace, February 2, 2022.
46 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

collaboration between employees and supervisors, and provided considerations for how to leverage 

technology to support a hybrid workplace were also provided.

Significance

Telework policies relate to the efficient and effective use of the Federal workforce (MSP 5). In 

addition, Federal employee performance management in any context relates to employees being 

advanced based on their relative knowledge, skill, and ability (MSP 1), fair and equitable treatment 

(MSP 2), Federal employees being retained based on the adequacy of their performance (MSP 6), 

and that employees should be provided effective training in cases where it would result in better 

organizational and individual performance (MSP 7).

In June 2021, OMB, OPM, and GSA released memorandum M-21-25, requiring agencies to submit 

a phased plan for reentry into the physical workspace, as well as for the post-reentry work 

environment. The guidance noted the expectation that decisions in these areas will be equitable and 

grounded in values that empower, respect, and galvanize the Federal workforce, while reflecting and 

emphasizing trust and accountability for the American people they serve. Agencies may also leverage 

issues such as telework as tools in their broader strategies for talent recruitment and retention.30

Additional guidance issued by OPM in July 2021 suggested that agencies start reassessing work 

schedules and frequency of telework based upon their experiences during the pandemic and

reestablish them in a way that best meets mission needs.31

MSPB’s report, Telework: Weighing the Information, Determining an Appropriate Approach, discussed issues 

and considerations that organizations should weigh when deciding how to integrate telework into 

their business strategies and operations. Many of the themes from the 2011 report continue to be 

relevant to today’s circumstances. The report discussed the various benefits and challenges telework 

can have for individual employees, as well as the overall organization. Below are some of the key 

issues agencies should consider as they identify how telework and other workplace flexibilities may

be used to support their missions in the post-pandemic workplace. 

Managers and supervisors should recognize that the optimal approach to telework will continue to 

evolve over time and may evolve differently within different work units. As part of their analysis, 

agencies may wish to consider supervisor and manager feedback, work quality and productivity 

measures, their own return-to-work surveys, and results of the annual Federal Employee Viewpoint 

Survey (FEVS) to make informed decisions about post-pandemic telework. 

Agency leaders must also ensure that supervisors are prepared for their role and can manage 

teleworkers and non-teleworkers effectively. Supervisors must have effective performance 

management skills to make sound decisions about telework eligibility and continuing its use, and to 

ensure fair treatment of teleworkers and non-teleworkers. Objective performance management 

practices can help supervisors exercise good and fair judgment and make decisions based on 

employee merit. OPM guidance related to managing performance in hybrid workplaces can help 

with this.

Employees also have an important role to play in agency telework programs. They should honestly 

assess their own work habits and preferred routines to participate in the discussion with their 

agency about what level of telework, if any, is right for them. Not all employees or jobs are 

30 OPM Memorandum for Executive Departments and Agencies (M-21-25), Integrating Planning for A Safe Increased Return of Federal 

Employees and Contractors to Physical Workplaces with Post-Reentry Personnel Policies and Work Environment, June 10, 2021.

31 OPM Memorandum for CHCOs, Additional Guidance on Post-Reentry Personnel Policies and Work Environment, July 23, 2021.
47 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

suitable for telework. Employees who telework should maintain their performance and fully 

engage with their supervisors, coworkers, customers, and other relevant parties. 

As we noted in a previous newsletter article, the use of post-pandemic telework may increase or 

decrease in Federal organizations based on the experience they gained with this workplace flexibility 

during the pandemic. To determine what level of telework is appropriate, agencies should carefully 

review a variety of indicators, including organizational data on employee productivity and 

performance during the period of maximum telework. Such important considerations should not be 

left solely to individual desires or beliefs that office productivity automatically improves when more 

employees are physically in the workspace, or, conversely, that teleworking does not have any 

negative impacts on individual or organizational performance and efficiency.

32 In sum, OPM’s 

telework guidance and tips are in accord with MSPs and free from PPPs.

Collective Bargaining

On April 26, 2021, President Biden signed EO 14025, Worker Organizing and Empowerment, to 

encourage worker organizing and collective bargaining. In 2022, OPM issued guidance to implement 

EO 14025 that included:

• Actions agencies can take related to the hiring and on-boarding process in support of the 

President’s goals to encourage worker organizing and collective bargaining. This guidance is 

related to actions Federal agencies can take to encourage worker organizing and collective 

bargaining consistent with the requirements of the Federal Service Labor-Management 

Relations Statute (FSLMRS) (5 U.S.C. Chapter 71).33

• Evaluating actions executive branch agencies can take to help promote worker organizing 

and collective bargaining consistent with the requirements of the FSLMRS. This guidance 

addressed some actions agencies can take related to the hiring and on-boarding process.34

• Guidance to agencies of statutory requirements regarding management actions during any 

union organizing.35

• Guidance to agencies regarding the processing of bargaining unit employee requests related 

to payroll deductions for labor organization dues.36

• Guidance to address some actions agencies can take related to increasing union access and 

ability to communicate with bargaining unit employees.37

Significance

It will be some time until the results of these initiatives are known, but they appear to be in accord 

with MSPs and free from PPPs. We note, however, that the intent—substantive involvement of 

employees and their representatives in work matters to improve productivity and delivery of 

services—is consistent with MSPB research on employee engagement and organizational 

32 MSPB, IoM, “Post-Pandemic Telework: An Epidemic of Efficiency?,” September 2021, p. 2.

33 OPM Memoranda for Heads of Executive Department and Agencies, Guidance on Implementation of EO 14025: Highlighting Bargaining 

Unit Employee Rights to Join a Union and Other Rights, October 20, 2021.

34 OPM Memoranda for Heads of Executive Department and Agencies, Highlighting Bargaining Unit Employee Rights in the Hiring and Onboarding Process, October 20, 2021.

35 OPM Memoranda for Heads of Executive Department and Agencies, Guidance on Implementation of EO 14025: Highlighting 

Requirements During Union Organizing, April 12, 2022.

36 OPM Memoranda for Heads of Executive Department and Agencies, Guidance on Implementation of EO 14025: Highlighting Requirement 

to Timely Process Requests for Payroll Deductions for Labor Organization Dues, April 12, 2022.

37 OPM Memoranda for Heads of Executive Department and Agencies, Guidance on Implementation of EO 14025: Highlighting Union 

Rights to Access and Communicate with Bargaining Unit Employees, April 12, 2022.
48 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

performance. MSPB has found that employee engagement (a heightened connection to work and 

the organization) is correlated with organizational performance and other positive outcomes.38 One 

component of employee engagement is a positive work environment, which includes cooperation 

and employee involvement in work decisions. Thus, positive labor-management relationships could 

potentially increase employee engagement in addition to yielding visible improvements in operations. 

Federal Workforce Priorities Report

In May 2022, OPM released the second Federal Workplace Priorities Report (FWPR) in accordance 

with the revised Title 5, Code of Federal Regulations, Part 250 subpart B, which was effective April 

2017.39 OPM established the FWPR in regulation in response to recommendations in the GAO 

report, Human Capital: Strategies to Help Agencies Meet Their Missions in an Era of Highly Constrained 

Resources (GAO-14-168). In that report, GAO recommended that OPM strengthen coordination 

and leadership of Government-wide HC issues. One of two key supporting actions was the 

development of a Government-wide HC strategic plan. Building upon this idea, OPM committed 

to developing a report that establishes Government-wide HC priorities based upon current and 

emerging workforce challenges. 

The FWPR, however, is not intended to serve as a plan that obligates the HC community to 

specific actions, timeframes, and measures of success. Rather, the President’s Management Agenda

(PMA) and Cross-Agency Priority Goals create a process for establishing such Government-wide 

requirements and highlight needed workforce reforms (e.g., “Strengthening and Empowering the 

Federal Workforce”). The FWPR, instead, communicates key Government-wide HC priorities 

intended to inform agency strategic and HC planning. Agencies are required to align their HC

management strategies to support the FWPR, as demonstrated in HC Operating Plans. 

OPM identified eight priorities in areas that, when addressed, it believes will spur productivity and 

organizational success, and align with Administration priorities. Four of the priorities are assigned 

the label of “Primary,” and the remaining four priorities are assigned the label of “Enabling.” The 

enabling priorities will have a direct impact on successful implementation of the primary priorities. 

In addition, the enabling priorities are critical for designing visionary strategies, identifying metrics 

for success, and measuring progress over the next four years. The enabling priorities are 

foundational for future success and critical to sound HC Management. OPM requires that agencies 

focus their efforts on two primary priorities but recognizes that they will need to use the concepts 

espoused by the enabling priorities to maximize their success. The eight priorities are:

Primary Priorities

• Leveraging Technology and Modernizing IT Processes

• Recruitment, Succession Planning, and Knowledge Transfer

• Enhancing Employee Experience, Fostering Employee Well-Being, and Building a Diverse 

and Inclusive Workforce

• Fostering an Agile Organization and the Growth Mindset

Enabling Priorities

38 See MSPB, The Power of Federal Employee Engagement, Washington, DC, September 2008. In addition to better programmatic results, 

Federal agencies with higher levels of employee engagement experienced lower rates of sick leave use and equal employment 

opportunity complaints than did agencies with lower levels of employee engagement.

39 OPM Memorandum for HR Directors, 2022 Federal Workforce Priorities Report, May 10, 2022.
49 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

• Enhancing Customer Experience

• Leveraging Data as a Strategic Asset

• Preparedness and Resilience

• Developing an Agency Foresight Capability

Significance

As we noted in our 2019 review of OPM’s significant actions that addressed the first edition of the 

FWPR, not every issue facing the Federal workforce can be a top priority. Still, although hiring and 

recruitment was identified as a contributor to key challenges in the workforce, it was not identified 

as a Federal workforce priority at that time, and neither was building a diverse and inclusive 

workforce.40 As the 2022 FWPR includes these two topics, it correctly signals their importance to 

the future of an effective Federal workforce. This is in accord with MSPs and free from PPPs.

In the FWPR, OPM presents a number of promising practices regarding each Primary and Enabling 

Priority that are already underway, led either by the Administration or by various agencies. The 

promising practices are mini–case studies that should give agencies some ideas on how they can 

focus their efforts with respect to each priority.

OPM acknowledges that agencies are working on a host of Federal workforce priorities, which are 

set by numerous issuances from the Administration, including the PMA, the President’s budget, and 

numerous executive orders and regulatory requirements. Agencies also work through strategic HC

issues through their strategic planning process, the development of their HC Operating Plans, 

implementing recommendations from GAO, and in response to OPM HC Reviews. We look 

forward to seeing how OPM organizes, consolidates, and communicates information to stakeholders

and tracks the impact of these initiatives.

Review of the Rules and Regulations of OPM

MSPB has authority to review OPM rules and regulations upon request, or on its own motion, to 

determine if the regulations or the implementation of the regulations would cause a person to 

commit a PPP.

41 These rare requests are processed under HQ adjudication procedures for original 

jurisdiction cases. In FY 2022, no cases requesting review of OPM regulations were received, and 

none were decided. There were six regulation review cases pending at the end of FY 2022, including 

one case filed in FY 2015, one case filed in FY 2017, two cases filed in FY 2018, and two cases filed 

in FY 2021. In October 2022, the Board issued a ruling on the review request filed in FY 2015. It is 

expected that considerable progress will be made in FY 2023 on the remaining review requests. 

40 MSPB, Annual Report for FY 2019, January 31, 2020, p. 38.

41 5 U.S.C. § 1204(a)(4) and 5 U.S.C. Section 1204(f)(1-4) at https://www.govinfo.gov/content/pkg/USCODE-2011-

title5/html/USCODE-2011-title5-partII-chap12-subchapI-sec1204.htm
50 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

MSPB FINANCIAL SUMMARY

Fiscal Year 2022 Financial Summary

as of September 30, 2022

(dollars in thousands)

Financial Sources

FY 2022 Appropriation $45,825

Civil Service Retirement and Disability Trust Fund 2,345

Total Financial Sources $ 48,170

Obligations Charged to FY 2022

Personnel Compensation $23,820

Personnel Benefits 8,553

Travel of Things 7

Travel of Persons 32

Rents, Communications and Utilities 3,764

Printing and Reproduction 25

Other Services 4,808

Supplies and Materials 174

Equipment 592

Reimbursable Obligations 2,345

Total Obligations Incurred $44,120
51 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

LIST OF ABBREVIATIONS AND ACRONYMS

AFR MSPB Annual Financial Report

AJ Administrative judge

ALJ Administrative law judge

ALOC Acceptable level of competence

APHIS USDA’s Animal and Plant Health Inspection Service

APR-APP MSPB’s Annual Performance Report and Annual Performance Plan

AR Annual Report

BFS Treasury’s Bureau of the Fiscal Service

CAFC U.S. Court of Appeals for the Federal Circuit

CHCO Chief Human Capital Officer

COVID-19 Novel coronavirus 

CSRA Civil Service Reform Act of 1978

CSRS Civil Service Retirement System

DHS Department of Homeland Security

DOD Department of Defense

DOE Department of Energy

DOI Department of the Interior

ECQ Executive Core Qualifications

EEO Equal employment opportunity

EEOC Equal Employment Opportunity Commission

EO Executive Order

EWIM Executive Women in Motion

FAM MSPB’s Office Financial and Administrative Management

FBI Federal Bureau of Investigation

FERS Federal Employees Retirement System

FERCCA Federal Erroneous Retirement Coverage Corrections Act

FEVS Federal Employee Viewpoint Survey

FMLA Family Medical Leave Act

FOs MSPB’s field offices

FSLMRS Federal Service Labor-Management Relations Statute 

FTC Federal Trade Commission

FWPR Federal Workplace Priorities Report

FY Fiscal year

GAO Government Accountability Office

GPRAMA Government Performance and Results Act Modernization Act of 2010

GSA U.S. General Services Administration

HC Human capital

HQ MSPB’s headquarters
52 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

HR Human resources

IoM MSPB’s Issues of Merit newsletter

IRA Individual right of action

IRM MSPB’s Office of Information Resources Management

IT Information technology

LEO Law enforcement officer

MPS MSPB’s Merit Principles Survey

MSPs Merit system principles

MSPB Merit Systems Protection Board

NDAA National Defense Authorization Act

NFC USDA’s National Finance Center

OA Executive Office of the President, Office of Administration

OAC MSPB’s Office of Appeals Counsel

OCB MSPB’s Office of the Clerk of the Board

OGC MSPB’s Office of General Counsel

OPE MSPB’s Office of Policy and Evaluation

OMB Office of Management and Budget

OPM Office of Personnel Management

ORO MSPB’s Office of Regional Operations

OSC Office of Special Counsel

OWCP Office of Workers’ Compensation Programs

PFR Petition for review

PIO Performance Improvement Officer

PIP Performance Improvement Plan

PMA President’s Management Agenda

PPPs Prohibited personnel practices

PUMP Act Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act

PWFA Pregnant Workers Fairness Act

ROs MSPB’s regional offices

SEC Securities and Exchange Commission

SES Senior Executive Service

SL/ST Senior Leader or Scientific or Technical positions

SSA Social Security Administration

T&E Training and experience

U.S.C. United States Code

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act of 1994

USPS U.S. Postal Service

VEOA Veterans Employment Opportunities Act of 1998

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
53 Merit Systems Protection Board Annual Report for FY 2022 April 18, 2023

U.S. Merit Systems Protection Board

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