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Foreword

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

Board (MSPB) submits this annual report on its significant actions during fiscal year (FY) 2017.

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

DeeAnn Batten, Ph.D.

Performance Improvement Officer

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

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

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2017 program performance results (as required under the 

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

Performance Report and Annual Performance Plan (APR-APP) for FY 2017-2019. Financial 

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

FY 2017. MSPB’s Annual Reports, AFRs, APR-APPs, and Strategic Plans are posted on the 

‘Agency Plans and Reports’ 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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Table of Contents

 Page

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

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

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

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

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

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

MSPB Organizational Chart ..........................................................................................................................................7

Fiscal Year 2017 in Review ............................................................................................ 9

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

MSPB Regulations...........................................................................................................................................................9

Merit Systems Studies......................................................................................................................................................9

The Significant Actions of the Office of Personnel Management..........................................................................9

Outreach, Merit Systems Education, and References to MSPB’s Work..............................................................10

Legislative and Congressional Relations Activity .....................................................................................................10

External Factors and Internal Management Challenges .........................................................................................12

Case Processing Statistics for FY 2017 .........................................................................13

Summary of Cases Decided by MSPB .......................................................................................................................13

Cases Processed in the Regional and Field Offices.................................................................................................14

Cases Processed at Headquarters................................................................................................................................22

Significant Board Decisions and Court Opinions Issued in FY 2017......................... 27

Significant Board Decisions Issued in FY 2017 .......................................................................................................27

Significant Opinions Issued by the U.S. Courts of Appeals for the Federal Circuit in FY 2017 ....................32

Significant Opinions in Whistleblower Appeals Issued by the Other Circuit Courts in FY 2017 ..................37

Significant Opinions Issued by the U.S. Supreme Court in FY 2017...................................................................37

Summary of Merit Systems Studies Activity in FY 2017 ............................................. 39

Summaries of Reports Released in FY 2017.............................................................................................................40

FY 2017 Noteworthy Articles......................................................................................................................................40

FY 2016 Issues of Merit Newsletter Topics..................................................................................................................40

Significant Actions of the U.S. Office of Personnel Management in FY 2017.............41

OPM Leadership............................................................................................................................................................41

New Significant Actions of OPM...............................................................................................................................42

Financial Summary...................................................................................................... 49

List of Abbreviations and Acronyms ............................................................................51
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1 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2017 ANNUAL REPORT

MESSAGE FROM THE VICE CHAIRMAN

I am pleased to submit the U.S. Merit System Protection Board’s (MSPB’s) Annual Report for 

fiscal year (FY) 2017. The most critical issue facing MSPB is the lack of a quorum of Board 

members, which began on January 8, 2017. Lacking a quorum prevents MSPB from issuing 

decisions on petitions for review and other cases at headquarters, and publishing reports of merit 

systems studies. In addition, without a quorum, MSPB cannot promulgate new regulations in 

response to Congressional changes in our jurisdiction or processes. Even so, MPSB continues to 

receive cases at headquarters and I continue to vote on the draft decisions prepared by our legal 

staff. Under long-standing delegations authorized by title 5 of the United States Code, MSPB’s 

administrative judges in our regional and field offices continue to process initial appeals, hold 

hearings, and issue decisions. MSPB analysts continue to conduct research and draft merit systems 

studies reports, and we continue to carry out our administrative functions. Since January 8, 2017, 

I have served as Acting Chairman of the Board, and was honored to be designated Vice Chairman 

by President Trump on January 23, 2017. My official term ends on March 1, 2018. MSPB’s statute 

allows one additional year of service beyond that date, pending confirmation of a successor.

However, until a quorum is restored, MSPB will not be able to exercise its full responsibilities to 

protect merit, including additional responsibilities recently enacted by Congress.

In FY 2017, MSPB issued 6,028 total decisions, including 5,811 decisions by MSPB’s regional and 

field offices, 207 decisions by the Board at headquarters, and 10 decisions by administrative law 

judges. The number of decisions issued at headquarters is the total finalized during the slightly more 

than three months of the prior to Chairman Grundmann’s departure. As of December 31, 2017, 

there were approximately 750 cases pending before the Board members, and the number of cases 

grows each week. This is the largest inventory of cases at headquarters awaiting member action in 

our history. It constitutes the largest number of cases awaiting action at the start of the future Board 

members’ service. These cases include regular petitions for review and other cases such as

enforcement cases, requests for review of regulations of the Office of Personnel Management, and 

original jurisdiction cases. This report includes summaries of significant Board decisions and 

opinions issued by our reviewing Courts and case processing data for the regional and field offices 

and for headquarters. The case processing data for headquarters cases are provided for transparency, 

but the figures for FY 2017 will not be comparable to previous years because of the shorter period 

of time reflected in these data. 

In early FY 2017 when the Board had a quorum, MSPB issued one study report entitled Adverse 

Actions: A Compilation of Articles. Currently, we have two reports ready for review and publication

once a full quorum is restored. Consistent with a schedule adopted in 2013, we continue to produce 

additional reports, which also await review by new Board members. MSPB also published three 

editions of the Issues of Merit newsletter and three Noteworthy articles including articles on addressing 

misconduct, disciplinary actions, and effective management under the merit system principles. 

Summaries of MSPB’s studies publications and other studies activities are included in this Annual 

Report. In accord with section 1206 of MSPB’s statute, this Annual Report includes summaries of the 

significant actions of the Office of Personnel Management, and an assessment of the degree to which 

those actions support the merit principles and a workforce free from prohibited personnel practices. 
2 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Although the biggest challenge MSPB faces currently is the lack of a quorum, MSPB also must be 

prepared to face external factors such as changes in law and jurisdiction, and Governmentwide 

reorganization leading to budget and workforce reductions. These changes could impact our 

appeals workload, and emphasize the need for a strong merit systems studies program. We also 

have internal challenges including the number of employees eligible to retire and the need to 

improve and modernize our information technology and information services functions. These 

issues are briefly summarized here. Due to a lack of a quorum, the Board may be unable to fully 

address all of these issues. 

Despite the challenges we face, MSPB employees continue to focus on our mission to protect the 

merit system principles and promote an effective workforce free of prohibited personnel practices. 

Mark A. Robbins

Vice Chairman

January 19, 2018
3 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

INTRODUCTION

This U.S. Merit Systems Protection Board (MSPB) Annual Report for FY 2017 includes summaries 

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

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

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

1

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

education activities, legislative and congressional relations activities, and the internal management 

challenges and external factors that affect MSPB’s work. 

About MSPB

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

Civil Service Commission to adjudicate employee appeals, thus providing 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 management 

issues. In addition, MSPB was given the authority and responsibility to review and act on OPM’s 

regulations and review and report on OPM’s significant actions.2 The CSRA also codified for the first 

time the values of the Federal merit systems as the merit system principles (MSPs) and delineated 

specific actions and practices as the prohibited personnel practices (PPPs), which are proscribed 

because they are contrary to merit system values.3Since the CSRA’s enactment, Congress has given 

MSPB jurisdiction to hear cases and complaints filed under a variety of other laws.4

MSPB’s Mission and Vision

Mission 

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

free of Prohibited Personnel Practices.

Vision

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

providing excellent service to the American people.

 

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

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

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

regulations if such regulations, or the implementation of such regulations, would require an employee to commit a prohibited personnel 

practice. Pursuant to 5 U.S.C. § 1206, MSPB also is responsible for annually reviewing and reporting on OPM’s significant actions.

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

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

Veterans Employment Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; Whistleblower Protection Act (WPA), Pub. L. 101-12, 103 

Stat. 16; Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 112-199, as amended by the “Follow the Rules Act,” 

Pub. L. 115-40; Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L. 115-41; authority 

for one Board member to extend OSC stay requests, Pub. L. 115-42; Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, 

Pub. L. 115-73; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 5 C.F.R. § 1201.3.
4 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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. 

MARK A. ROBBINS

Vice Chairman, January 2017 to Present

Member, May 2012 to January 2017

Mark A. Robbins was nominated by President Barack Obama on 

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

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

2012. President Donald Trump designated Mr. Robbins Vice Chairman

on January 23, 2017. His term expires on March 1, 2018. Pending reestablishment of a Board quorum, Mr. Robbins will perform the 

functions vested by title 5 in the Office of the Chairman. 

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

of the U.S. Election Assistance Commission. He previously served as a 

Senior Rule of Law Advisor for the State Department in Babil Province, Iraq, where he was awarded 

the U.S. Army’s Commander’s Award for Civilian Service. Mr. Robbins also served as Executive 

Director of the White House Privacy and Civil Liberties Oversight Board between 2006 and 2008 

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

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

White House Office of Presidential Personnel from 1984 to 1988. Mr. Robbins began his career as a 

Legislative Assistant to two Los Angeles area Members of Congress, covering, among other things, 

civil service and Federal management issues.

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

He is a member of the California and District of Columbia bars. In recognition of his extensive 

professional involvement and continued leadership in public administration, in 2013, Mr. Robbins 

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

SUSAN TSUI GRUNDMANN

Chairman, November 2009 thru January 7, 2017

Susan Tsui Grundmann was nominated by President Barack Obama 

to serve as a Member and Chairman of the MSPB on July 31, 2009. 

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

sworn in on November 12, 2009. Chairman Grundmann’s term 

expired on March 1, 2016, and she continued to serve as Chairman 

until January 7, 2017, under the Board’s enabling statute that permits 

a member to remain for up to one year, or until a new member is 

confirmed and sworn in to succeed that member.

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

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

and is affiliated with the International Association of Machinist and Aerospace Workers. At NFFE, 
5 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

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

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

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

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

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

coordinated response to proposed personnel changes at the Department of Defense (DoD). In 

addition to DoD employees, Ms. Grundmann represented employees in the Forest Service, 

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

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

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

and Technology Center in Hollywood, Maryland. Prior to joining NFFE, Ms. Grundmann served as 

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

law clerk to the judges of the Nineteenth Judicial Circuit of Virginia, and later worked in both 

private practice and at the Sheet Metal Workers’ National Pension Fund. Chairman Grundmann 

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

University Law Center.

Currently, there are two vacant member positions and the Board lacks a quorum, which prevents it 

from issuing decisions in petitions for review (PFRs) and other cases at headquarters (HQ) and 

issuing reports of merit systems studies. It also prevents the Board from promulgating regulations in 

response to changes enacted by Congress.

MSPB Offices and Their Functions

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

throughout the United States. For FY 2018 the agency requested 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 EEO Director reports to the Chairman. Directors of 

other 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. The functions of this office currently are performed under interagency 

agreements by ALJs at the Federal Trade Commission, the Coast Guard, and the Environmental 

Protection Agency.

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

Board to consider for cases in which a party files a PFR of an initial decision issued by an 

administrative judge (AJ) and in most other cases to be decided by the Board. The office prepares 

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

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

issues to the Board.

The Office of the Clerk of the Board receives and processes cases filed at HQ, rules on certain 

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

center, coordinates media relations, operates MSPB’s library and on-line information services, and 
6 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

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

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

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

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

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

MSPB’s managers and supervisors.

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

travel, time and attendance, human resources (HR), procurement, property management, physical 

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

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

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

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

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

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

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

MSPB in litigation; coordinates the review of rules and regulations of the Office of Personnel 

Management (OPM); prepares proposed decisions for the Board to enforce a final MSPB decision 

or order, in response to requests to review OPM regulations, and for other assigned cases; conducts 

the agency’s PFR settlement program; and coordinates the agency’s legislative policy and 

congressional relations functions. The office also drafts regulations, conducts MSPB’s ethics 

program, performs the Inspector General function, and plans and directs audits and investigations. 

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

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

out its administrative and research responsibilities.

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

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

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

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

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

significant actions. 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 

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

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

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

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

issuing fair, well-reasoned, and timely initial decisions.
7 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

MSPB Organizational Chart
8 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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9 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

FISCAL YEAR 2017 IN REVIEW

Adjudication

As previously mentioned, MSPB does not have a quorum of Board Members, which began when 

former Chairman Susan Tsui Grundmann departed on January 7, 2017. The lack of a quorum 

prevents the Board from issuing final decisions in PFRs and other cases filed at HQ, such as 

requests for enforcement and for review of OPM regulations. This report includes case processing 

statistics for initial appeals and PFRs at HQ. However, due to the lack of a quorum for most of this 

FY, HQ case processing statistics represent only slightly over one-quarter of the past year. 

Therefore, these data are not comparable to HQ case processing statistics in prior Annual Reports

which covered data over the entire fiscal years. 

In FY 2017, MSPB processed 6,028 cases. MSPB’s AJs in the regional and field offices issued initial 

decisions in 5,811 cases including decisions in 5,406 initial appeals. MSPB’s Board Members 

processed 207 cases including 145 PFRs. MSPB continued to provide alternative dispute resolution 

options to its customers, including the MAP. Information about whistleblower cases will be available 

in MSPB’s APR-APP for FY 2017 – FY 2019 in accord with the Whistleblower Protection 

Enhancement Act of 2012 (WPEA).

Statistical information on MSPB’s case processing activity is provided in the Case Processing Statistics 

for FY 2017 section of this report. Information for HQ cases in this section covers approximately 

3 months of data because there was no quorum of Board members to vote on and issue PFR and 

other HQ decisions from early January 2017 to the end of September 2017. Summaries of significant 

MSPB decisions, and opinions issued by the U.S. Court of Appeals for the Federal Circuit, other 

Circuit Courts, and the U.S. Supreme Court are included in the section entitled Significant Board 

Decisions and Court Opinions Issued in FY 2017.

MSPB Regulations

In 2017, Congress enacted the Department of Veterans’ Affairs Accountability and Whistleblower 

Protection Act of 2017, amended the WPEA by the “Follow the Rules Act,” and authorized that 

when MSPB lacks a quorum, a single Board member can extend Office of Special Council (OSC) 

stay requests. Because the Board lacks a quorum, it has not been able to promulgate necessary 

regulations to implement these new authorities.

Merit Systems Studies

In FY 2017, MSPB approved and published one merit system study reports on adverse actions. MSPB 

also issued three editions of its Issues of Merit (IoM) newsletter, and three online articles. Summaries of 

FY 2017 MSPB merit systems study reports, IoM newsletter, Noteworthy articles, and other merit 

systems studies activities are located in the Summary of Merit Systems Studies Activity in FY 2017

section of this report.

The Significant Actions of the Office of Personnel Management

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

ensure that they conform with MSPs and do not result in PPPs. In FY 2017, MSPB reviewed OPM’s 

new significant actions including: Final Rule Regarding the Annual Employee Survey Requirement 
10 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

and the 2017 Federal Employee Viewpoint Survey (FEVS), Reforming the Federal Government and 

Reshaping the Federal Civilian Workforce, Framework for the Continuing Development of Federal 

Senior Executives, and Governmentwide Survey of Federal Work-Life Programs. MSPB updated 

the status of previous OPM significant actions and provided the review of OPM’s work within the 

context of significant OPM issues including the changes in OPM Leadership. More information 

about MSPB’s review of OPM significant actions is included in that section of 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 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 

operations and understanding of the Federal merit system disciplinary and appeals process by 

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

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

provide value to the taxpayer.

In FY 2017, MSPB staff conducted 138 outreach events with a variety of customers and 

stakeholders. MSPB staff presented at the OPM Research Summit, the Federal Dispute Resolution

conference, several other conferences, several Federal departments and agencies, the Chief Learning 

Officer Council, Government Accountability Office, and to management, union, and affinity 

groups. MSPB’s Director of the Office of Policy and Evaluation participated in a series of meetings 

between OMB and Federal agencies to clarify OMB’s expectations for agency responses to OMB 

Memorandum M-17-22.

MSPB’s adjudication and studies work, and other activities involving MSPB, were cited over 600 

times in at least 150 different print and online sources including wire services, professional and trade 

publications, textbooks, newspapers, and other media. Several MSPB merit system study reports were 

cited in the Appendix to OMB Memorandum M-17-22 entitled “Comprehensive Plan for Reforming the 

Federal Government and Reducing the Federal Civilian Workforce,” and the Congressional Research Service 

report entitled “Federal Government Employment: Veterans’ Preference in Competitive Examining.” Other 

specific citations of MSPB’s work are contained in the legislative summary and merit system studies 

activity sections of this report.

Legislative and Congressional Relations Activity

Legislation that Impacts MSPB or the Civil Service. During FY 2017, MSPB staff reviewed over 

50 bills that might impact MSPB’s jurisdiction, adjudication processes, or the Federal civil service in 

general. The following bills would affect the adjudicatory function of the Board.

National Defense Authorization Act (NDAA) of 2017 (S. 2943). Enacted on December 23, 2016, this 

statute contains several provisions that affect MSPB jurisdiction.

5 One provision grants MSPB appeal 

rights to dual status military technicians when the appeal concerns certain activities (e.g., reductions is 

force (RIFs), adverse actions, and other unspecified activities) that occurred when the technician was 

not in military pay status and when the issue does not involve fitness for duty in the reserve 

component. Another provision grants MSPB appeal rights to a former employee to challenge an

agency’s decision to place a notation of an adverse investigative or administrative finding in his or her 

official personnel file. The NDAA also made changes to the definitions and limits of administrative 

 

5 The NDAA for FY 2017, Pub. L. 114-328 § 512 (gives appeal rights to military technicians), § 1111 (repeals 180-day waiver).
11 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

leave applicable to all Federal employees. The law also repeals the waiver of the 180-day waiting 

period after retirement before retired members of the armed forces may be appointed to DoD

civilian positions. The Senate Report 114-25 for the repeal of the 180-day waiver cites MSPB’s report

on veterans’ hiring entitled, Veteran Hiring in the Civil Service: Practices and Perceptions.

Follow the Rules Act (H.R. 657). This bill amends 5 U.S.C. § 2302 to expand the prohibited 

personnel practice established in 2302(b)(9)(D) (the so-called “right to disobey” provision) to include 

the right to disobey orders that violate rules and regulations (as opposed to only statutes). This 

effectively overrules the U.S. Court of Appeals for the Federal Circuit's decision in Rainey v. MSPB, 

824 F.3d 1359 (Fed. Cir. 2016), which held, based on the canons of statutory construction, that a 

federal employee has no right to disobey an order he or she believes violates a federal regulation.6

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017

(S. 1094). This bill eliminates MSPB appeal rights for Senior Executive Service (SES) employees of 

the Department of Veterans Affairs (VA) who have been suspended, demoted, or removed from 

Federal service for performance or misconduct. The bill retains MSPB appeal rights for non-SES 

employees under an expedited review process. MSPB AJs are required to issue decisions within 180 

days after the appeal is filed. The AJ’s decision may be appealed to the three-member Board. The bill 

does not limit the amount of time the Board may take to issue a decision. The Board’s decision may 

be appealed to the U.S. Court of Appeals for the Federal Circuit.7

Authority to provide for extensions of OSC stay requests under 5 U.S.C. § 1214 when MSPB lacks a 

quorum or Board members. The legislation provides authorization, in the event that MSPB lacks a 

quorum, for any remaining member of the Board who has been confirmed by the Senate, to grant an 

extension of a stay of a personnel action upon request by OSC.

8

The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. This law creates a 14th PPP 

prohibiting access to medical records of another employee or an applicant for employment as a part 

of, or otherwise in furtherance of, any conduct described in PPPs 1 through 13. In addition, this law 

(1) requires agency heads to propose disciplinary action against supervisors who have engaged in 

Whistleblower retaliation, (2) provides certain whistleblower protections to probationary Federal 

employees, (3) provides guidelines to enhance Federal employee awareness of Federal whistleblower 

protections, and (4) enhances access of information by the OSC.9

Other Congressional Activity. Vice Chairman Robbins submitted a statement for the hearing 

conducted by the Senate Committee on Indian Affairs on S. 1250, the Restoring Accountability in 

the Indian Health Service Act of 2017, which was held on June 13, 2017. This bill was similar to 

S. 2953 which was introduced during the previous session of Congress and for which former 

Chairman Grundmann submitted a hearing statement last year. As was the case with the previous 

bill, Vice Chairman Robbins’ statement described possible constitutional defects with S. 1250.

MSPB staff conducted two briefings for congressional staff during this fiscal year. The first briefing 

was the annual staff briefing on the agency’s budget request. The second briefing was conducted at 

the request of minority staff of the Senate Judiciary Committee regarding civil service protections 

available to Federal employees. 

 

6 Pub. L. 115-40, June 14, 2017.

7 Pub. L. 115-41, June 23, 2017.

8 Pub. L 115-42, June 27, 2017.

9 Pub. L.115-73, October 26, 2017
12 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

External Factors and Internal Management Challenges

General information about the external factors and internal management challenges that may affect

MSPB’s work is provided here as context for the other information contained in the Annual Report. 

More detailed information about the external factors and internal management challenges that effect 

MSPB’s work can be obtained in the MSPB APR-APP for FY 2017 – FY 2019. MSPB’s primary

internal challenges include human capital issues, and ensuring a stable, secure and viable IT 

infrastructure to support current mission and administrative functions and its modernization efforts,

which include implementing MSPB’s e-Adjudication initiative and obtaining a secure, cloud-based 

survey capability. The major external factors include changes in law and jurisdiction and 

Governmentwide reform including possible Governmentwide budget and workforce reductions.

Human Capital Issues. Chairman Susan Tsui Grundmann’s term ended March 2016 and she 

continued to serve as Chairman until her departure on January 7, 2017. On January 8, 2017, and 

pending re-establishment of a Board quorum, Mr. Robbins will perform the functions vested by 

Title 5 in the Office of the Chairman. On January 23, 2017, President Donald J. Trump designated 

Mark A. Robbins, as Vice Chairman of the Board. Vice Chairman Robbins’ 7-year term will expire 

on March 1, 2018. Without a quorum of at least two confirmed and sworn-in Board Members, 

MSPB is not be able to issue decisions on PFRs and other cases at HQ or publish reports of merit 

system studies. In addition, 22 percent of MSPB employees will be eligible to retire in the next two 

years. This includes over 25 percent of the 70 AJs and managers in the regional and field offices

occupying permanent positions, and several employees serving in one-deep critical positions.

IT Infrastructure Stability and Modernization. In FY 2016, MSPB enlisted the help of an

independent contractor to assess the agency’s network and infrastructure. MSPB continues to focus 

on providing a stable and viable IT infrastructure that supports MSPB’s mission and administrative 

functions, and implementing IT modernization initiatives. More detailed information about the

status of MSPB’s IT infrastructure, progress on improvements during FY 2017, and future IT 

modernization plans can be found in the APR-APP for FY 2017 – FY 2019.

Changes in Law and Jurisdiction. In addition to legislation reported in last year’s Annual Report

and reported in the legislative section of this year’s report, several other bills were introduced in FY 

2017. There is likely to be further action on these or similar bills in the new Congress. MSPB will 

continue to monitor legislation that affects the merit systems and MSPB’s role in protecting merit, and 

significant legislative activity on these topics will be summarized in the FY 2018 Annual Report. As 

stated above, to carry out all of MSPB’s statutory responsibilities, including issuing decisions at HQ 

and merit systems study reports, MSPB needs a quorum of Board Members.

Governmentwide Budget Reductions. The Administration’s Government Reform efforts10 will 

likely lead to Governmentwide budget and workforce reductions beginning as early as late FY 2018, 

and increasing in later years. Workforce reductions could mean an increase in appeals involving

furloughs, RIFs, or early retirements through Voluntary Early Retirement Authority (VERA) and 

Voluntary Separation Incentive Payment (VSIP). Legislative changes and budget reductions not only 

affect our adjudication functions, they also emphasize the need for strong merit studies and OPM 

review programs to ensure the Federal workforce continues to be managed under the MSPs and free 

from PPPs.

 

10 https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-22.pdf.
13 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

CASE PROCESSING STATISTICS FOR FY 2017

Summary of Cases Decided by MSPB

As of January 8, 2017, MSPB did not have a quorum, which is required to issue final decisions in 

PFRs and other cases filed at HQ. The data associated with HQ cases in the charts and graphs 

below consist of approximately 3 months of data, and are not comparable to HQ data reported in 

previous Annual Reports which included data for full fiscal years. Also note that percentages in the 

following tables and charts may not add to 100% due to rounding.

Table 1: FY 2017 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices(RO/FOs)

 Appeals 5,406

 Addendum Cases1 378

 Stay Requests2 27

TOTAL Cases Decided in RO/FOs 5,811

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3

10

 Cases Decided by the Board at Headquarters

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 145

 Petitions for Review (PFRs) - Addendum Cases 32

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Orders 0

 Reopenings4 1

 Court Remands 4

 Compliance Referrals 5

 EEOC Non-concurrence Cases 0

 Arbitration Cases 1

 Subtotal - Appellate Jurisdiction 188

 Original Jurisdiction5 18

 Interlocutory Appeals 1

 TOTAL Cases Decided by the Board 207

 TOTAL Decisions (Board, ALJs, RO/FOs) 6,028

1

Includes 88 requests for attorney fees, 85 Board remand cases, 174 compliance cases, 6 court remand cases, 18 requests for compensatory

damages (discrimination cases only), 6 requests for consequential damages, 1 request for liquidated damages.

2

Includes 15 stay requests in whistleblower cases and 12 in non-whistleblower cases.

3

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

and 6 Actions Against ALJs.

4

Includes 1 case reopened by the Board on its own motion. 

5 Final Board Decisions: 1 Disciplinary Action – Non-Hatch Act and 17 Requests for Stay.
14 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

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

Adverse Action by Agency 2,177 976 44.83 1,201 55.17 714 59.45 487 40.55

Termination of 

Probationers 386 361 93.52 25 6.48 24 96.00 1 4.00

Reduction in Force 18 9 50.00 9 50.00 5 55.56 4 44.44

Performance 160 36 22.50 124 77.50 77 62.10 47 37.90

Acceptable Level of 

Competence (ALOC)

3

37 22 59.46 15 40.54 7 46.67 8 53.33

Suitability 85 41 48.24 44 51.76 33 75.00 11 25.00

CSRS Retirement: Legal4 309 178 57.61 131 42.39 3 2.29 128 97.71

CSRS Retirement: Disability 6 3 50.00 3 50.00 0 0.00 3 100.00

CSRS Retirement: 

Overpayment

64 25 39.06 39 60.94 24 61.54 15 38.46

FERS Retirement: Legal4 123 84 68.29 39 31.71 1 2.56 38 97.44

FERS Retirement: Disability 70 48 68.57 22 31.43 1 4.55 21 95.45

FERS Retirement: 

Overpayment

427 178 41.69 249 58.31 174 69.88 75 30.12

FERCCA4 25 15 60.00 10 40.00 1 10.00 9 90.00

Individual Right of Action 558 355 63.62 203 36.38 105 51.72 98 48.28

USERRA 137 81 59.12 56 40.88 15 26.79 41 73.21

VEOA 149 67 44.97 82 55.03 10 12.20 72 87.80

Other5 675 633 93.78 42 6.22 30 71.43 12 28.57

Total 5,406 3,112 57.57 2,294 42.43 1,224 53.36 1,070 46.64

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

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

3 An acceptable level of competence (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 may deny his or her within-grade increase (WIGI).

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

Corrections Act (FERCCA).

5 “Other” appeals include Restoration to Duty (57), Miscellaneous (557), and additional types such as Reemployment Priority, 

Employment Practices, and others.
15 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

Total Number of Appeals: 5,406

Termination of 

Probationers (386)

7%

Reduction in Force 

(18)

0%

Performance (160)

3%

Acceptable Level of 

Competence (37)

1%

Suitability (85)

2%

CSRS Retirement: 

Legal (309)

6%

CSRS Retirement: 

Disability (6)

0%

CSRS Retiremant: 

Overayment (64)

1%

FERS Retirement: 

Legal (123)

FERS Retirement: 2%

Disability (70)

1%

FERS Retirement: 

Overpayment (427)

8%

FERCCA (25)

0%

Individual Right of 

Action (558)

10%

USERRA (137)

3%

VEOA (149)

3%

Other (675)

12%

Adverse Actions 

(2177)

40%
16 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Figure 3.2: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices

Total Number of Appeals Not Dismissed: 2,294

Figure 3.3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 1,070 Appeals Adjudicated on the Merits

Appeal Settled 

Action or (1224) 53%

Decision Upheld 

or Left 

Undisturbed 

(899) 39%

Action or 

Decision 

Overturned or 

Corrective 

Action Ordered 

(139) 6%

Mitigated (20)

1%

Other (12) 1%

Action or 

Decision Upheld 

or Left 

Undisturbed 

(899) 84%

Action or 

Decision 

Overturned or 

Corrective 

Action Ordered 

(139) 13%

Mitigated (20)

2% Other (12) 1%
17 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Table 3: Disposition of Appeals by Agency

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

Office of Personnel 

Management3

1049 536 51.1 513 48.9 228 44.4 285 55.6

Department of Veterans Affairs 896 577 64.4 319 35.6 187 58.6 132 41.4

Department of the Army 499 252 50.5 247 49.5 106 42.9 141 57.1

United States Postal Service 493 324 65.7 169 34.3 118 69.8 51 30.2

Department of Homeland 

Security 364 208 57.1 156 42.9 77 49.4 79 50.6

Department of the Navy 325 177 54.5 148 45.5 88 59.5 60 40.5

Department of Defense 244 142 58.2 102 41.8 58 56.9 44 43.1

Department of the Air Force 208 112 53.8 96 46.2 57 59.4 39 40.6

Department of Justice 194 105 54.1 89 45.9 47 52.8 42 47.2

Department of the Treasury 188 107 56.9 81 43.1 46 56.8 35 43.2

Department of Agriculture 125 70 56.0 55 44.0 37 67.3 18 32.7

Department of Health and 

Human Services 119 64 53.8 55 46.2 24 43.6 31 56.4

Department of the Interior 112 68 60.7 44 39.3 25 56.8 19 43.2

Social Security Administration 98 59 60.2 39 39.8 18 46.2 21 53.8

Department of Transportation 91 62 68.1 29 31.9 17 58.6 12 41.4

Department of Commerce 70 38 54.3 32 45.7 20 62.5 12 37.5

Department of Energy 45 21 46.7 24 53.3 13 54.2 11 45.8

Department of Labor 41 36 87.8 5 12.2 3 60.0 2 40.0

Department of Housing and 

Urban Development 32 20 62.5 12 37.5 5 41.7 7 58.3

Department of State 27 18 66.7 9 33.3 5 55.6 4 44.4

General Services 

Administration 25 14 56.0 11 44.0 9 81.8 2 18.2

Environmental Protection 

Agency 19 13 68.4 6 31.6 3 50.0 3 50.0

Tennessee Valley Authority 17 10 58.8 7 41.2 6 85.7 1 14.3

Equal Employment 

Opportunity Commission 10 9 90.0 1 10.0 1 100.0 0 0.0

Federal Communications 

Commission 10 4 40.0 6 60.0 4 66.7 2 33.3

Securities and Exchange 

Commission 10 9 90.0 1 10.0 0 0.0 1 100.0

National Aeronautics and 

Space Administration 9 5 55.6 4 44.4 2 50.0 2 50.0
18 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

Small Business Administration 9 4 44.4 5 55.6 1 20.0 4 80.0

Federal Deposit Insurance 

Corporation 8 7 87.5 1 12.5 1 100.0 0 0.0

Office of Special Counsel 6 6 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 6 5 83.3 1 16.7 1 100.0 0 0.0

Department of Education 5 2 40.0 3 60.0 1 33.3 2 66.7

Federal Reserve System 5 4 80.0 1 20.0 0 0.0 1 100.0

Broadcasting Board of 

Governors 4 4 100.0 0 0.0 0 0.0 0 0.0

Court Services and Offender 

Supervision Agency for the 

District of Columbia

4 0 0.0 4 100.0 3 75.0 1 25.0

National Archives and Records 

Administration 4 3 75.0 1 25.0 0 0.0 1 100.0

Armed Forces Retirement 

Home 3 1 33.3 2 66.7 1 50.0 1 50.0

Export-Import Bank of the 

United States 3 2 66.7 1 33.3 1 100.0 0 0.0

National Labor Relations Board 3 0 0.0 3 100.0 3 100.0 0 0.0

Administrative Office of the 

U.S. Courts 2 2 100.0 0 0.0 0 0.0 0 0.0

Central Intelligence Agency 2 1 50.0 1 50.0 0 0.0 1 100.0

Corporation for National and 

Community Service 2 1 50.0 1 50.0 0 0.0 1 100.0

Government Publishing Office 2 2 100.0 0 0.0 0 0.0 0 0.0

International Boundary and 

Water Commission: U.S. and 

Mexico

2 1 50.0 1 50.0 1 100.0 0 0.0

National Council on Disability 2 0 0.0 2 100.0 2 100.0 0 0.0

National Credit Union 

Administration 2 1 50.0 1 50.0 1 100.0 0 0.0

Railroad Retirement Board 2 1 50.0 1 50.0 1 100.0 0 0.0

American Battle Monuments 

Commission 1 0 0.0 1 100.0 1 100.0 0 0.0

Denali Commission 1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Housing Finance 

Agency 1 1 100.0 0 0.0 0 0.0 0 0.0
19 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

Federal Mediation and 

Conciliation Service 1 1 100.0 0 0.0 0 0.0 0 0.0

Judicial Branch 1 1 100.0 0 0.0 0 0.0 0 0.0

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

Overseas Private Investment 

Corporation 1 0 0.0 1 100.0 1 100.0 0 0.0

Special Inspector General for 

Afghanistan Reconstruction 1 0 0.0 1 100.0 0 0.0 1 100.0

St. Lawrence Seaway 

Development Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

United States International 

Trade Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Total 5,406 3,112 57.6 2,294 42.4 1,224 53.4 1,070 46.6

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 administrator of the CSRS 

and FERS retirement systems.
20 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Office of Personnel 

Management2

285 216 75.79 56 19.6 2 0.7 11 3.9

Department of the Army 141 131 92.91 6 4.3 4 2.8 0 0.0

Department of Veterans Affairs 132 110 83.33 20 15.2 1 0.8 1 0.8

Department of Homeland 

Security 79 68 86.08 9 11.4 2 2.5 0 0.0

Department of the Navy 60 48 80.00 7 11.7 5 8.3 0 0.0

United States Postal Service 51 44 86.27 7 13.7 0 0.0 0 0.0

Department of Defense 44 37 84.09 6 13.6 1 2.3 0 0.0

Department of Justice 42 34 80.95 7 16.7 1 2.4 0 0.0

Department of the Air Force 39 34 87.18 4 10.3 1 2.6 0 0.0

Department of the Treasury 35 31 88.57 3 8.6 1 2.9 0 0.0

Department of Health and 

Human Services 31 27 87.10 4 12.9 0 0.0 0 0.0

Social Security Administration 21 21 100.00 0 0.0 0 0.0 0 0.0

Department of the Interior 19 16 84.21 3 15.8 0 0.0 0 0.0

Department of Agriculture 18 18 100.00 0 0.0 0 0.0 0 0.0

Department of Commerce 12 12 100.00 0 0.0 0 0.0 0 0.0

Department of Transportation 12 10 83.33 2 16.7 0 0.0 0 0.0

Department of Energy 11 10 90.91 1 9.1 0 0.0 0 0.0

Department of Housing and 

Urban Development 7 7 100.00 0 0.0 0 0.0 0 0.0

Department of State 4 3 75.00 1 25.0 0 0.0 0 0.0

Small Business Administration 4 4 100.00 0 0.0 0 0.0 0 0.0

Environmental Protection 

Agency 3 2 66.67 1 33.3 0 0.0 0 0.0

Department of Education 2 0 0.00 1 50.0 1 50.0 0 0.0

Department of Labor 2 2 100.00 0 0.0 0 0.0 0 0.0

Federal Communications 

Commission 2 2 100.00 0 0.0 0 0.0 0 0.0
21 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (Cont.)

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

General Services Administration 2 2 100.00 0 0.0 0 0.0 0 0.0

National Aeronautics and Space 

Administration 2 2 100.00 0 0.0 0 0.0 0 0.0

Armed Forces Retirement Home 1 1 100.00 0 0.0 0 0.0 0 0.0

Central Intelligence Agency 1 1 100.00 0 0.0 0 0.0 0 0.0

Corporation for National and 

Community Service 1 1 100.00 0 0.0 0 0.0 0 0.0

Court Services and Offender 

Supervision Agency for the 

District of Columbia

1 1 100.00 0 0.0 0 0.0 0 0.0

Federal Reserve System 1 1 100.00 0 0.0 0 0.0 0 0.0

National Archives and Records 

Administration 1 1 100.00 0 0.0 0 0.0 0 0.0

National Science Foundation 1 0 0.00 0 0.0 1 100.0 0 0.0

Securities and Exchange 

Commission 1 1 100.00 0 0.0 0 0.0 0 0.0

Special Inspector General for 

Afghanistan Reconstruction 1 1 100.00 0 0.0 0 0.0 0 0.0

Tennessee Valley Authority 1 0 0.00 1 100.0 0 0.0 0 0.0

Total 1,070 899 84.0 139 13.0 20 1.9 12 1.1

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 administrator of the CSRS and 

FERS retirement systems. 
22 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Cases Processed at Headquarters

This information includes approximately 3 months of data (October 1, 2016 thru January 7, 2017) 

due to a lack of a quorum. These data are presented for transparency but are not comparable to HQ 

data from previous annual reports.

Table 5: Disposition of Petitions for Review of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

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

Adverse Action by Agency 68 7 10.29 1 1.47 49 72.06 4 5.88 7 10.29

Termination of 

Probationers 11 0 0.00 0 0.00 10 90.91 0 0.00 1 9.09

Reduction in Force 2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

Performance 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Acceptable Level of 

Competence (ALOC)

2

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Suitability 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00

CSRS Retirement: Legal3 9 1 11.11 0 0.00 6 66.67 0 0.00 2 22.22

CSRS Retirement: 

Disability 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00

CSRS Retirement: 

Overpayment 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00

FERS Retirement: Legal3 4 1 25.00 0 0.00 2 50.00 0 0.00 1 25.00

FERS Retirement: 

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

FERS Retirement: 

Overpayment 6 0 0.00 0 0.00 5 83.33 0 0.00 1 16.67

FERCCA3 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00

Individual Right of Action 23 2 8.70 3 13.04 17 73.91 0 0.00 1 4.35

USERRA 3 1 33.33 0 0.00 0 0.00 1 33.33 1 33.33

VEOA 3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33

Other 11 1 9.09 0 0.00 9 81.82 0 0.00 1 9.09

Total 145 13 8.97 4 2.76 106 73.10 5 3.45 17 11.72

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

sua sponte, i.e., of the Board’s own accord (5 C.F.R. § 1201.117(a)). This definition applies also to Table 6, and Figures 3.5 and 3.7. Historically, 

when the Board denied a party’s PFR, but upon review of a case, chose to analyze additional issues, this was described as “reopening the 

appeal on its own motion under 5 C.F.R. § 1201.118,” and the description used in the Annual Report was “Denied But Reopened.” In 2012, the 

Board amended its regulation at 5 C.F.R. § 1201.118 to state that “reopening” only applies to instances in which the Board already has issued 

a final order or the initial decision has become the Board’s final decision by operation of law. The Board refrains from using the term 

“reopening” in adjudicating a PFR unless it is taking action to reopen a closed matter. Accordingly, the Board will continue to report 

dispositions of cases that are denied, but in which the Board considers other issues of its own accord as “Denied; Further Analysis.”

2 An acceptable level of competence (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 ALCO, then the agency may deny his or her within-grade increase (WIGI).

3 Civil Service Retirement System (CSRS); Federal Employees Retirement System (FERS); Federal Erroneous Retirement Coverage Corrections 

Act (FERCCA).
23 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Figure 3.4: Types of Petitions for Review 

Total Number of PFRs: 145

Adverse Actions 

(68) 47%

Termination of 

Probationers (11)

8%

Reduction In Force 

(2) 1%

Performance (3)

2%

Acceptable Level 

of Competence (1)

1%

Suitability (9) 6%

FERS Retirement: 

Legal (4) 3%

FERS Retirement: 

Disability (1) 1%

FERS Retirement: 

Overpayment (6)

4%

Individual Right of 

Action (23) 16%

USERRA (3) 2%

VEOA (3) 2%

Other (11) 8%
24 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Figure 3.5: Disposition of Petitions for Review of Initial Decisions

Based on 145 Total PFRs

Figure 3.6: Disposition of Petitions for Review Granted

Based on 17 PFRs Granted

Dismissed (13)

9%

Settled (4) 3%

Denied (106)

73%

Denied but 

Reopend (5) 3%

Granted (17)

12%

Initial Decision 

Affirmed (1) 6%

Initial Decision 

Reversed (3) 18%

Case Remanded 

(12) 70%

Other (1) 6%
25 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

Based on 5 PFRs Denied; Further Analysis

Initial Decision 

Affirmed (4) 80%

Other (1) 20%
26 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis

 Granted

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

Office of Personnel 

Management 21 2 9.52 0 0.00 15 71.43 0 0.00 4 19.05

United States Postal Service 19 2 10.53 0 0.00 14 73.68 1 5.26 2 10.53

Department of Veterans 

Affairs 17 3 17.65 0 0.00 11 64.71 0 0.00 3 17.65

Department of the Interior 13 1 7.69 0 0.00 11 84.62 1 7.69 0 0.00

Department of the Navy 10 0 0.00 0 0.00 7 70.00 1 10.00 2 20.00

Department of Defense 9 0 0.00 0 0.00 8 88.89 0 0.00 1 11.11

Department of the Air Force 9 0 0.00 1 11.11 7 77.78 0 0.00 1 11.11

Department of the Army 9 0 0.00 0 0.00 8 88.89 1 11.11 0 0.00

Department of Homeland 

Security 8 1 12.50 0 0.00 6 75.00 0 0.00 1 12.50

Department of Agriculture 4 1 25.00 0 0.00 2 50.00 1 25.00 0 0.00

Department of Justice 4 0 0.00 0 0.00 3 75.00 0 0.00 1 25.00

Social Security 

Administration 4 1 25.00 2 50.00 1 25.00 0 0.00 0 0.00

Department of Energy 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Department of the Treasury 3 1 33.33 1 33.33 1 33.33 0 0.00 0 0.00

Department of Health and 

Human Services 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Department of 

Transportation 2 1 50.00 0 0.00 0 0.00 0 0.00 1 50.00

Corporation for National 

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

Department of Commerce 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Department of Labor 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Environmental Protection 

Agency 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Federal Reserve System 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

General Services 

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

National Aeronautics and 

Space Administration 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

National Science Foundation 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Total 145 13 8.97 4 2.76 106 73.10 5 3.45 17 11.72
27 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

SIGNIFICANT BOARD DECISIONS AND COURT OPINIONS ISSUED IN FY 2017

Several of the Board’s significant decisions issued in FY 2017 are summarized below. As a service to 

MSPB’s stakeholders, we also have provided brief summaries of selected significant opinions issued by 

the U.S. Court of Appeals for the Federal Circuit, other Circuit Courts, and the Supreme Court.

Significant Board Decisions Issued in FY 2017

Jurisdiction

Winns v. U.S. Postal Service, 2017 MSPB 1, 124 M.S.P.R. 113 (2017): At issue in this case was the 

meaning of the term “current continuous service” for purposes of 5 U.S.C. § 7511(a)(1)(B), which 

provides that the Board has jurisdiction over the adverse action appeal of a preference-eligible Postal 

Service employee who has completed 1 year of current continuous service in the same or similar 

positions. The appellant, a preference eligible, held a series of four temporary appointments with the 

agency. Each appointment was for less than a year and the first three appointments were followed 

by a break in service of at least several days. The agency terminated the appellant from his fourth 

temporary appointment for alleged misconduct after 9 months of service. The AJ dismissed the 

appellant’s termination appeal for lack of jurisdiction, finding that the appellant did not have 1 year 

of current continuous service at the time of his termination. On review, the appellant argued that he 

had Board appeal rights under the “continuing employment contract” theory set forth in Roden v. 

Tennessee Valley Authority, 25 M.S.P.R. 363, 367-68 (1984), which involved circumstances similar to 

those present here. In Roden, the Board found that the agency had effectively entered into a 

continuing employment contract with the appellant and, therefore, despite several breaks, his service 

was “continuous” within the meaning of § 7511(a)(1)(B). In assessing whether Roden was still good 

law, the Board noted that, after Roden was issued, OPM promulgated 5 C.F.R. § 752.402, which 

defines “current continuous service” as a period of employment or service immediately preceding an 

adverse action without a break in Federal civil employment of a workday. Thus, under 5 C.F.R. 

§ 752.402, neither the employee’s service in Roden, nor the appellant’s service at issue in this appeal, 

qualify as “current continuous service.” The Board found that OPM’s definition of “current 

continuous service” was consistent with the ordinary meaning of that term, which appears to 

preclude breaks in service, and that OPM’s interpretation of section 7511(a)(1)(B) was reasonable.

Accordingly, the Board agreed with the AJ’s finding that it lacks jurisdiction over this appeal, and it 

overruled Roden and subsequent decisions relying on Roden to find that an appellant may establish 

“current continuous service” for purposes of section 7511(a)(1)(B) under a “continuing employment 

contract” theory, despite a break in service of a workday.

Settlement

Bruhn v. Department of Agriculture, 2016 MSPB 42, 124 M.S.P.R. 1 (2016): After the agency issued a 

decision to remove the appellant for growing marijuana, the parties entered a last-chance agreement 

(LCA). Under its terms, the appellant agreed to serve a 45-day suspension for his alleged misconduct 

and the agency agreed to hold the removal in abeyance for 2 years, pending the appellant’s 

satisfactory completion of the LCA, which required him to refrain from engaging in any misconduct 

and to abide by all Federal and state laws during the 2-year period. The agreement further provided 

that, if the agency discovered that the appellant had engaged in any misconduct during that period, it 

could remove him immediately, and that he waived his right to appeal or contest any such removal. 

The agency subsequently removed the appellant pursuant to the agreement upon learning that he 

had marijuana growing in his garage. On appeal, the appellant argued that the LCA was unlawful 

because it allowed both a suspension and a removal for the same misconduct. The AJ rejected this 
28 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

argument, found that the LCA was valid, and dismissed the appeal for lack of jurisdiction based on 

the appellant’s waiver of his appeal rights in the LCA. On review, the Board noted that, outside the 

context of a settlement agreement, it has long held that an agency cannot impose a disciplinary 

action more than once for the same misconduct. However, the Board explained, LCAs serve the 

important public policy of avoiding unnecessary litigation and encouraging the speedy resolution of 

issues, and the incorporation of some discipline into the agreement makes it more likely that the 

agency will consider entering into the agreement because the employee will not escape all 

punishment for the charged offense. The Board therefore agreed with the AJ’s finding that the 

appellant’s removal for the same misconduct that served as the basis for a 45-day suspension was 

permissible, and it affirmed the initial decision.

Delorme v. Department of the Interior, 2017 MSPB 2, 124 M.S.P.R. 123 (2017) (See below, listed under 

“Compliance” section).

Discrimination

Gardner v. Department of Veterans Affairs, 2016 MSPB 36, 123 M.S.P.R. 647 (2016): The appellant 

filed a removal appeal and asserted affirmative defenses of discrimination and retaliation. The AJ 

affirmed the removal. In denying the appellant’s race and sex discrimination and equal employment 

opportunity (EEO) reprisal affirmative defenses, the AJ applied the evidentiary standards set forth 

in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42-43, 51 (2015). In Savage, the Board stated 

that, when an appellant asserts an affirmative defense of discrimination or retaliation under 

42 U.S.C. § 2000e-16, she must first show by preponderant evidence that the prohibited 

consideration was a motivating factor in the contested personnel action. The Board further stated 

that, to meet this burden, an appellant may rely on direct evidence or any of the following three 

types of circumstantial evidence either alone or in combination: pretext, comparator, or “convincing 

mosaic.” Savage also overruled prior Board decisions to the extent that they held that, to establish 

such a claim using circumstantial evidence, an appellant must provide evidence showing a 

“convincing mosaic” of discrimination or retaliation against her.

While the appellant’s petition for review was pending before the Board, the U.S. Court of Appeals 

for the Seventh Circuit issued Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). In Ortiz, 

the Seventh Circuit clarified that the phrase “convincing mosaic” was not meant to impose a new, 

separate legal requirement or to serve as a legal test. The court also held that, instead of sorting 

evidence into different piles, labeled “direct” and “indirect,” and evaluating each type of evidence 

differently, all evidence belongs in a single pile and must be evaluated as a whole. 

In light of Ortiz, the Board modified the initial decision to clarify that Savage does not require AJs to 

separate “direct” from “indirect” evidence and to proceed as if such evidence were subject to 

different legal standards, nor does it require appellants to demonstrate a “convincing mosaic” of 

discrimination or retaliation. Instead, the Board explained, all evidence must be evaluated as a whole 

in determining whether the appellant has met her initial burden to show a motivating factor. The 

Board found that the AJ satisfied this standard, as she did not disregard evidence because it was not 

direct or indirect, nor did she treat the term “convincing mosaic” as a legal requirement. Rather, the 

Board found, the AJ properly considered the evidence as a whole in finding that the appellant failed 

to prove that discrimination or retaliation was a motivating factor in her removal. Accordingly, the 

Board affirmed the initial decision as modified.
29 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Reprisal

Elder v. Department of the Air Force, 2016 MSPB 41, 124 M.S.P.R. 12 (2016): The appellant filed a 

removal appeal and claimed that the agency retaliated against him for filing an earlier Board appeal and 

two petitions for enforcement of the settlement agreement that resolved his prior appeal. In his earlier 

appeal, the appellant raised a whistleblower retaliation claim under 5 C.F.R. § 2302(b)(8). Reprisal for 

filing a Board appeal that includes such a claim is prohibited under 5 U.S.C. § 2302(b)(9)(A)(i). The AJ 

reversed the removal and granted corrective action, finding that the agency did not prove its charges 

and that it had retaliated against the appellant for his prior Board activity. In analyzing the reprisal 

claim, the AJ applied the general reprisal standard set forth in Warren v. Department of the Army, 

804 F.2d 654, 656-58 (Fed. Cir. 1986). On review, the Board modified the initial decision, explaining 

that the Warren standard is inapplicable to claims that allege reprisal under 5 U.S.C. § 2302(b)(9)(A)(i). 

Instead, those claims must be analyzed under the burden-shifting standards set forth in 5 U.S.C. 

§ 1221(e). In such cases, the appellant must first establish that he engaged in protected activity that 

was a contributing factor in the personnel action at issue. If he does so, the burden of persuasion 

shifts to the agency to prove by clear and convincing evidence that it would have taken the same 

action absent the appellant’s protected activity. Applying this standard, the Board found that the 

appellant met his burden to prove that he engaged in protected activity that was a contributing factor 

in his removal; however, the agency failed to meet its clear and convincing burden. Accordingly, the 

Board denied the agency’s petition for review and ordered corrective action.

Hess v. U.S. Postal Service, 2016 MSPB 40, 124 M.S.P.R. 40 (2016): The appellant filed an appeal of 

her removal, raising affirmative defenses of sex and disability discrimination, reprisal for EEO 

activity, and whistleblower reprisal. The Board reversed the AJ’s ruling that the Board lacks authority 

to award compensatory damages, vacated the order that stayed the proceedings below, and returned 

the appeal to the regional office for further adjudication. The Board found that its decision in Savage 

v. Department of the Army, 122 M.S.P.R. 612 (2015) does not alter its practice of awarding 

compensatory damages and thus the appeal was not moot because the agency’s rescission of the 

removal action did not afford the appellant all of the relief available. 

Veterans Employment Opportunity Act of (VEOA)

Montgomery v. Department of Health & Human Services, 2016 MSPB 8,123 M.S.P.R. 216 (2016): The 

appellant filed a VEOA appeal alleging that he was denied the right to compete for a job under 

5 U.S.C. § 3304(f)(1) when the agency transferred an employee from outside its workforce to a 

competitive-service position without first advertising the vacancy. The AJ denied the appellant’s 

request for corrective action, finding that the agency could fill the vacancy by any authorized 

method, and the appellant had not shown that he was qualified for the job. On review, the Board 

first found that the agency was required to advertise the vacancy before filling it, because 

5 U.S.C. § 3304(f)(1) applies to both merit promotion and open competitive examining procedures. 

The Board further considered the agency’s claim that it did not announce the positon at issue 

because, pursuant to an internal standard operating procedure, it “shared” a selection certificate for

an advertised vacancy for an allegedly comparable position, for which the appellant applied but was 

not selected. The Board rejected that argument, finding that an internal agency policy may not 

override otherwise applicable statutes, including 5 U.S.C. § 3304(f)(1). Because there was a genuine 

dispute of material fact regarding the appellant’s qualification for the job at issue, the Board 

remanded the case for further adjudication. 
30 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

National Security Determinations

Palafox v. Department of the Navy, 2016 MSPB 43, 124 M.S.P.R. 54 (2016): The appellant was 

indefinitely suspended based on the suspension of his access to classified information, and the AJ 

sustained the action. On review, the Board considered the appellant’s claim that the agency denied 

him due process, which requires that an employee being deprived of his property interest be given a 

meaningful opportunity to respond to the proposed action. As to the facts underlying the proposed 

indefinite suspension, the Board found that the agency provided the appellant due process by 

informing him of the basis for the indefinite suspension, i.e., that his position required access to 

classified information and his access to classified information had been suspended. The Board 

further found that the agency complied with the procedural requirements of 5 U.S.C. § 7513 by 

informing him of the specific reasons for the suspension of his access to classified information. 

Concerning the penalty, the Board rejected the appellant’s argument that he was denied a meaningful 

opportunity to persuade the deciding official to reassign him instead of imposing the proposed 

indefinite suspension because reassignment would have been inconsistent with agency policy. The 

Board explained that due process does not require that a deciding official consider alternatives that 

are prohibited, impracticable, or outside management’s purview. The Board also rejected the 

appellant’s argument that he was denied due process regarding the suspension of his access to 

classified information. The Board found that terminating the appellant’s access to classified 

information did not implicate due process because it is well settled that employees do not have a 

liberty or property interest in access to classified information. Therefore, the Board affirmed the 

initial decision.

Retirement

Pierotti v. Office of Personnel Management, 2016 MSPB 46, 124 M.S.P.R. 103 (2016): The appellant 

challenged OPM’s reconsideration decision, which declined to waive collection of an overpayment 

that resulted when he received both workers’ compensation and disability retirement benefits 

covering the same period of time. The AJ affirmed OPM’s reconsideration decision, finding that the 

appellant was not eligible for a waiver of the collection of the overpayment because he did not show 

that he was without fault, and that he was not eligible for an adjustment of the recovery schedule 

because he did not show that making payments at the rate scheduled by OPM would cause him 

financial hardship. On review, the Board affirmed the initial decision as modified. The Board agreed 

with the AJ that the appellant was not without fault, and was thus ineligible for a waiver, because he 

accepted payments that he knew or should have known were erroneous. The Board further found, 

however, that collecting the overpayment at the rate scheduled by OPM would cause the appellant 

financial hardship, and it modified the collection schedule to $5 per month because the appellant’s 

monthly expenses exceeded his monthly income.

Timeliness

Little v. U.S. Postal Service, 2017 MSPB 5, 124 M.S.P.R. 183 (2017): The appellant filed a formal 

EEO complaint with the agency, which issued a final agency decision (FAD) finding no merit to his 

discrimination claims. The appellant filed a Board appeal 31 days after the FAD was delivered to his 

post office box. Under 5 C.F.R. § 1201.154(b), such an appeal must be filed within 30 days after the 

appellant receives the FAD. The appellant argued that his appeal was timely filed because he did not 

actually receive the FAD until he checked his post office box 3 days after the FAD was delivered. 

The AJ dismissed the appeal on jurisdictional grounds without reaching the timeliness issue. On 

review, the Board explained that, under a prior version of 5 C.F.R. § 1201.154(b), the filing period 

began to run from the date of the appellant’s actual receipt of the FAD; however, under the Board’s 
31 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

revised regulations that became effective November 13, 2012, the date of receipt is determined 

according to the standard set forth at 5 C.F.R. § 1201.22(b)(3), which provides for constructive 

receipt in certain circumstances. As an example, 5 C.F.R. § 1202.22(b)(3) provides that an appellant 

who fails to pick up mail delivered to his or her post office box may be deemed to have received the 

agency decision. The Board found that, under 5 C.F.R. § 1201.22(b)(3), the appellant constructively 

received the FAD on the day that it was delivered to his post office box and his appeal was thus 

untimely filed by 1 day. Accordingly, the Board vacated the initial decision and dismissed the appeal 

as untimely filed.

Compliance

Delorme v. Department of the Interior, 2017 MSPB 2, 124 M.S.P.R. 123 (2017): The appellant filed a 

Board appeal challenging her termination and the parties entered into a settlement agreement while 

jurisdiction was still unresolved. The agreement provided that it would be entered into the Board’s 

record and that it would be an enforceable contract between the parties. The AJ accepted the 

agreement into the record for the limited purpose of memorializing that the appeal was withdrawn 

as part of an agreement. After the appeal was dismissed, the appellant filed a petition for 

enforcement (PFE), alleging that the agency had violated the agreement. The AJ dismissed the PFE, 

finding that the agreement was not enforceable by the Board because the question of whether the 

Board had jurisdiction over the underlying matter appealed had not yet been decided.

On review, the Board noted that, prior to Shaw v. Department of the Navy, 39 M.S.P.R. 586, (1989), an 

AJ was not required to determine that the Board had jurisdiction over the underlying matter 

appealed before accepting a settlement agreement into the record for enforcement purposes. The 

Board added that requirement in Shaw based on its determination that, in the Civil Service Reform 

Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress expressed an intent to provide the Board 

with authority to settle cases, but only those over which it has jurisdiction.

Citing the decision of the U.S. Court of Appeals for the Federal Circuit in King v. Reid, 59 F.3d 1215, 

1218-19 (Fed. Cir. 1995), the Board found that Shaw misread the Board’s statutory enforcement 

authority regarding settlement agreements. In King, the Federal Circuit found that once a case has 

been dismissed pursuant to a settlement agreement, whether the Board’s jurisdiction previously had 

been established over the underlying matter appealed is irrelevant to subsequent enforcement of the 

agreement, as the dismissal of the appeal ends any jurisdiction the Board once might have had over 

the matter. In these circumstances, the Federal Circuit explained, the Board retains jurisdiction over 

a settlement agreement made part of the record pursuant to its power under 5 U.S.C. § 1204(a)(2) to 

enter and enforce its own orders. The Board found that, per King, in a case in which the parties have 

settled before a jurisdictional determination is made, the Board retains jurisdiction under 

section 1204(a)(2) to enforce the settlement agreement if it has been entered into the record for that 

purpose. Therefore, the Board overruled Shaw and its progeny to the extent that they required that 

jurisdiction be established over the underlying matter appealed before a settlement agreement could 

be accepted into the record and enforced by the Board. Accordingly, the Board vacated the 

compliance initial decision and remanded the appeal for further adjudication. 

Board Procedures

Morris v. Department of the Navy, 2016 MSPB 37, 123 M.S.P.R. 662 (2016): The appellant filed a PFR

that exceeded the page limit set forth at 5 C.F.R. § 1201.114(h). The Clerk’s Office provided the 

appellant the opportunity to perfect his PFR by submitting a petition that complied with the Board’s 

regulations. He again submitted a petition that exceeded the page limit and the Clerk’s Office gave 
32 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

him another chance to perfect the petition. When the appellant filed a petition that exceeded the 

page limit a third time, the Clerk’s Office advised him that he had a final opportunity to submit a 

petition that complied with 5 C.F.R. § 1201.114(h) and that, if he failed to do so, the Board could 

impose appropriate sanctions, including possibly dismissing his PFR with prejudice. 

Notwithstanding this warning, the appellant again filed a petition that exceeded the page limit. The 

Board dismissed the PFR with prejudice as a sanction for failure to prosecute. The Board noted that 

the sanction of dismissal with prejudice is appropriate when necessary to serve the ends of justice 

and should be imposed only when: (1) a party has failed to exercise due diligence in complying with 

Board orders; or (2) a party has exhibited negligence or bad faith in its efforts to comply. Applying 

this standard, the Board found that, by repeatedly failing to comply with the Board’s regulations and 

the clear directions provided by the Clerk’s Office, the appellant failed to exercise due diligence. The 

Board further found that the continual misogynistic invective that the appellant used in describing 

his dealings with the female staff in the Clerk’s Office showed bad faith. The Board concluded that, 

by his actions, the appellant failed to prosecute his PFR and that dismissal with prejudice was 

therefore appropriate.

Damages 

Weed v. Social Security Administration, 2016 MSPB 45, 124 M.S.P.R. 71 (2016): In a claim for 

liquidated damages, the Board agreed with the AJ that the agency did not willfully violate the 

appellant’s veterans’ preference rights by not complying with the Board’s order to reconstruct the 

hiring process. A violation is willful under 5 U.S.C. § 3330c(a) when the agency either knew or 

showed reckless disregard for whether its conduct was prohibited. Reconstructing the selection 

process may be appropriate when it is unknown whether a veteran would have been selected for a 

position. But reconstruction is not required when it is clear that the agency would have selected the 

veteran absent the VEOA violation. Here, the agency determined that it would have been obligated 

to select the appellant for any of the four positions at issue, and it made him a job offer within 30 

days of the Board’s order. Under these circumstances, the record did not establish that the agency 

knew or showed a reckless disregard of whether its offer of one of the positions at issue, as opposed 

to reconstructing the selection process, could be considered a violation of a statute or regulation 

relating to veterans’ preference. The Board agreed with the AJ that the Board is not authorized 

under VEOA to award consequential damages or front pay as remedies. 

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

FY 2017

Due Process

Federal Education Association & Graviss v. Department of Defense, 841 F.3d 1362 (Fed. Cir. 2016): The 

Federal Circuit reversed an arbitrator’s decision, which sustained the petitioner’s removal and rejected 

her argument that the agency violated her due process rights by not disclosing an email urging her 

termination at an earlier stage of the removal proceedings. The Court rejected the agency’s argument 

that the factors set forth in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), 

did not apply because the alleged ex parte communication occurred before removal proceedings were 

brought against the petitioner. The Court saw no distinction between pre- and post-initiation 

communications if an ex parte communication happens when a disciplinary proceeding is still only 

being contemplated, explaining that the risk of creating undue pressure in such circumstances is just 

as great when ex parte contact occurs before, as when it happens after, proceedings begin. 

Note: On October 13, 2017, the Court vacated its decision in Graviss and ordered a rehearing en banc.
33 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Jurisdiction

Lee v. Merit Systems Protection Board, 857 F.3d 874 (Fed. Cir. 2017): The petitioner, a former appointee 

under the Federal Career Intern Program (FCIP), challenged a Board decision dismissing for lack of 

jurisdiction the appeal of her termination from Federal service. The Federal Circuit affirmed the 

Board’s dismissal, holding that the agency’s decision not to convert an FCIP intern to the 

competitive service is not an “adverse action” appealable to the Board, see 5 C.F.R. § 1201.3(a)(1), 

because the implementing regulations clearly explain that interns have no right to further Federal 

employment after their appointments expire. The Court also disagreed with the petitioner’s 

argument that Executive Order 13,162, which created the FCIP, required that she be converted to 

the competitive service, given that the order states that competitive service may be granted to a 

successful intern, not that it shall be granted.

Banks v. Merit Systems Protection Board, 854 F.3d 1360 (Fed. Cir. 2017): The petitioner resigned after 

being notified that she would be terminated before her probationary period ended. On appeal, 

she argued that she involuntarily resigned and that her previous 3 years of service with the 

U.S. Postal Service (USPS) qualified as prior Federal service entitling her to Board appeal rights of 

her alleged constructive removal. The Board upheld the AJ’s dismissal of the appeal for lack of 

jurisdiction, finding that the petitioner was not an “employee” under 5 U.S.C. § 7511(a)(1) and that 

her service with the USPS did not provide her with appeal rights because the USPS is not an 

“executive agency” under 5 U.S.C. § 7511(a)(1)(C)(ii). The Federal Circuit affirmed the Board’s 

decision, agreeing that the petitioner was still serving a probationary period when she resigned, and 

that her prior service with the USPS did not qualify as “current, continuous service” in an Executive 

agency for purposes of Board appeal rights. The Court noted that the USPS is an “independent 

establishment of the executive branch of the Government of the United States,” see 39 U.S.C. § 201, 

rather than an “Executive department” or “Government corporation” as defined by 5 U.S.C. §§ 101 

and 103. The Court held that, because the USPS does not fall into any of the categories defining 

“independent establishment” in 5 U.S.C. § 104, the petitioner’s prior service with the USPS did not 

qualify her as an employee with appeal rights.

Adverse Action Charges

Cleaton v. Department of Justice, 838 F.3d 1126 (Fed. Cir. 2016): The Board affirmed the removal of a 

Correctional Officer terminated pursuant to 5 U.S.C. § 7371, which mandates the removal of any law 

enforcement officer convicted of a felony. Under that statute, any appeal of such a removal is limited 

to whether: (a) the employee is a law enforcement officer; (b) the employee was convicted of a 

felony; and (c) the conviction was overturned on appeal. 5 U.S.C. § 7321(e)(2). Here, the petitioner 

pled no contest to a criminal felony charge as part of a plea deal. As a result, he alleged in his Board 

appeal that he was not actually “convicted,” as defined by the statute. He also argued that, even if he 

were deemed to have been convicted of a felony under the initial plea agreement, that agreement was 

withdrawn and revised, thereby nullifying the conviction. The Federal Circuit affirmed the Board’s 

decision, finding that: (1) although the felony at issue was a matter of Virginia state law, the 

definition of what constitutes a “conviction” under a Federal statute is a question of Federal law; 

(2) for purposes of the statute, an individual is “convicted” “once guilt has been established whether 

by plea or by verdict and nothing remains to be done except pass sentence”; and (3) the petitioner 

did not prove his claim that his plea agreement was withdrawn; instead, it was merely revised to add a 

misdemeanor charge and to reflect that a finding of guilt would be withheld while he served his 

probation and that the charges would be dismissed if he successfully completed his probation. Thus, 

because the state court found the petitioner guilty after he pled no contest to a felony offense, which 
34 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

had not been overturned on appeal, the Court upheld the Board’s finding that the petitioner was 

convicted of a felony for purposes of section 7371(b) and sustained his removal.

Furloughs

Snyder v. Department of the Navy, 854 F.3d 1366 (Fed. Cir. 2017): The petitioner, a Navy employee, was 

furloughed while working on a project supporting Lockheed Martin. The agency denied requests 

from Lockheed Martin and the petitioner asking that she and certain other employees be exempted 

from the furlough. On appeal to the Board, the petitioner argued that the Navy improperly denied 

the requests because her work for Lockheed Martin should have been exempted. She claimed, among 

other things, that she was not paid out of Government-appropriated funds and so her furlough did 

not assist in reducing the budgetary shortfall. The AJ found she was properly furloughed, and the 

Board issued a split-vote decision, thereby leaving the AJ’s decision in place. The Federal Circuit 

affirmed the AJ’s decision, holding that: (1) the AJ’s analysis addressed the petitioner’s specific claims 

and was sufficient; (2) regardless of the exact source of the petitioner’s salary, the agency had 

flexibility to furlough her under a “holistic” approach to budget management because preserving 

money from the program funding her salary would permit it to meet higher priority needs; and 

(3) there was a sufficient nexus between the decision to furlough her and the sequestration.

Calhoun v. Department of the Army, 845 F.3d 1176 (Fed. Cir. 2017): The Federal Circuit affirmed the 

Board’s decision to uphold the furlough action in this case. The Court held that, although the 

petitioner contended that her budget proposals would have averted furloughs, the Board correctly 

declined to second guess agency management and spending decisions in applying the efficiency of 

the service standard. The Court agreed with the Board’s finding that no due process violation 

occurred here because the record reflected that the deciding official did in fact receive and review 

the petitioner’s written reply, including her budgetary proposals, prior to issuing the notice of 

decision. The Court also determined that the deciding official’s role was limited to resolving whether 

the decision to furlough the petitioner was proper and, notwithstanding the petitioner’s argument to 

the contrary, she was not deprived of a “meaningful reply” because the deciding official lacked the 

authority to determine if her budget proposals to avert the furlough were feasible. 

Whistleblower Protection

Miller v. Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016): The Federal Circuit reversed the 

Board’s decision, which held that the petitioner’s disclosures about financial improprieties and 

industrial sabotage at a factory on a medium-security prison facility were protected, and that, by 

virtue of the knowledge/timing test, they were a contributing factor in his reassignment. The Board 

also found that the agency showed by clear and convincing evidence that it would have reassigned 

the petitioner notwithstanding his disclosures, and so the Board denied his request for corrective 

action. After weighing the three factors set forth in Carr v. Social Security Administration, 185 F.3d 

1318, 1326 (Fed. Cir. 1999), the Court reversed, disagreeing with the Board’s finding that the 

agency carried its burden to prove independent causation by clear and convincing evidence, and 

remanded for further adjudication. 

Retirement

Boyd v. Office of Personnel Management, 851 F.3d 1309 (Fed. Cir. 2017): OPM found that the petitioner 

was overpaid when she began receiving Social Security benefits and OPM did not immediately 

reduce her disability retirement benefits. The petitioner asked OPM for a waiver and submitted a 

completed Financial Resources Questionnaire (FRQ) in which she detailed her financial 
35 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

conditions. OPM then advised her that she needed to provide an updated FRQ so OPM could 

determine whether to waive the overpayment. She did not furnish an updated FRQ and OPM 

denied her waiver request. On appeal, she did not respond to an AJ’s order directing her to produce 

evidence and argument to support her waiver claim. The record contained only the first page of her 

waiver request, which did not include her responses to the questionnaire. The AJ determined that 

the petitioner was “not without fault” in the overpayment because she failed to set aside the Social 

Security checks she received, despite an OPM notice telling her that she should do so. On review, 

the Board affirmed the AJ’s decision. The Federal Circuit vacated the Board’s decision, holding that 

(1) OPM’s “set aside” requirement does not apply to individuals who do not know or suspect that 

the overpayment does not belong to them, and (2) for such “unknowing individuals,” financial 

hardship can serve as a basis for finding that recovery of the overpayment is against equity and good 

conscience. The Court observed that the record was incomplete on the issue of whether the 

petitioner knew or suspected that she had been overpaid, and the Court instructed the Board on 

remand to resolve that question. 

USERRA

Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374 (Fed. Cir. 2017): In this USERRA appeal, the 

petitioner argued that, after he drove his personally owned vehicle to the agency’s headquarters to 

attend a deposition in his EEO complaint, he discovered a Blackberry device concealed under the 

hood of his car. He asserted that the Blackberry was the same model that the agency used for voice 

recording and electronic tracking and monitoring. He argued that the agency’s actions created four 

separate causes of action. The AJ dismissed the appeal for lack of jurisdiction. The Board affirmed 

the initial decision as modified, finding that the petitioner failed to nonfrivolously allege that the 

agency’s alleged conduct was based on his military status or that the agency subjected him to a 

hostile work environment in violation of USERRA. As to three of the four causes of action, the 

Federal Circuit found that: (1) the agency’s purported placement of a Blackberry in the petitioner’s

car and its actions during its investigation did not represent a discrete act of discrimination under 

USERRA because these actions were not denials of a “benefit of employment”; (2) the petitioner 

failed to make a nonfrivolous allegation that he was subjected to a hostile work environment based 

on his military service because he never actually alleged that the hostile work environment was based 

on his military service; and (3) neither the placement of the Blackberry nor the investigation 

constituted discrete acts of reprisal under USERRA. The Court therefore affirmed the Board’s 

decision as to those three causes of action. As to the fourth cause of action, the petitioner’s

retaliatory hostile work environment claim, the Court granted the Board’s request for a remand to 

permit review of that claim. 

National Security Determinations

Wilson v. Department of the Navy, 843 F.3d 931 (Fed. Cir. 2016): The petitioner challenged his removal 

to the Board, arguing that the revocation of his security clearance, as well as the resultant removal, 

was due to discrimination based on his uniformed service. The Board affirmed the removal, finding 

that the agency provided the petitioner with the procedural protections of 5 U.S.C. § 7513(b), the 

agency was not obligated to reassign him to a position that did not require a security clearance, and 

the Board was precluded from determining whether the security clearance determination was based 

on his uniformed service. The petitioner appealed to the Court, which affirmed. The Court found 

that, although the petitioner argued that USERRA authorizes review of security clearance 

determinations, under well-settled Supreme Court precedent, neither the Court nor the Board could 

determine whether discrimination was the reason for a security clearance revocation. 
36 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

Penalties

Purifoy v. Department of Veterans Affairs, 838 F.3d 1367 (Fed. Cir. 2016): The Federal Circuit vacated a 

Board order, which reversed an AJ’s decision to mitigate a removal to a 40-day suspension, finding 

that the Board’s analysis improperly omitted a review of certain relevant penalty factors under Douglas 

v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The Court stated that the Board must afford 

special deference to an AJ’s demeanor-based credibility determinations, even if demeanor is not 

specifically discussed. The Court discarded the Board’s substitution of the AJ’s credibility 

determinations that were made without an adequate rationale, and remanded for further proceedings. 

Timeliness

Fedora v. Merit Systems Protection Board, 848 F.3d 1013 (Fed. Cir. 2017): The Federal Circuit reaffirmed 

that the 60-day deadline for filing a PFR with the Court is a jurisdictional rule not subject to 

equitable tolling. The Court found that the governing Supreme Court precedent was Bowles v. Russell, 

551 U.S. 205 (2007), and that other recent decisions from the Supreme Court holding that some 

statutory deadlines are not jurisdictional, such as Henderson v. Shinseki, 562 U.S. 428 (2011), did not 

apply to Article III courts. The Court dismissed the PFR in this case because it was not timely filed.

Note: On January 16, 2018, the U.S. Supreme Court denied a petition for certiorari in Fedora.

Gallegos v. Merit Systems Protection Board, 844 F.3d 1340 (Fed. Cir. 2016): The Board dismissed as 

untimely filed the petitioner’s petition for enforcement, in which he asked the Board to order the 

agency to correct a Standard Form (SF) 50—as the agency had promised it would do pursuant to 

the parties’ settlement agreement. The Board also determined that good cause did not exist for the 

untimely filing because the petitioner did not show that he acted with due diligence, given that he 

failed to maintain a copy of the parties’ settlement agreement and did not check the SF 50 

reflecting that his removal was expunged (as per the settlement), when he received the documents. 

The Court affirmed. 

Attorney Fees

Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017): In this attorney fees matter, the Board 

awarded fees to two of the three attorneys that represented the petitioner during the course of her 

proceedings before the Board. The Board did not award any fees to one of the attorneys, however, 

partly because the petitioner herself questioned some of that attorney’s billing records. The Federal 

Circuit held that the mandatory language of the whistleblower statute’s fees provision, see 5 U.S.C. 

§ 1221(g)(1)(B), mandates that a petitioner who is a prevailing party is entitled to attorney fees and 

costs, even if, as here, the supporting documentation is in some way deficient. The Court reversed 

the Board’s decision and remanded for further proceedings, including a review of the billable records. 

Constitutionality of a Statute

Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017): The Deputy Secretary of the 

Department of Veterans Affairs removed the petitioner from her position under the Veterans Access, 

Choice and Accountability Act, 38 U.S.C. § 713, a measure adopted by Congress in part to expedite 

the removal of Department of Veterans Affairs executives based on misconduct or gross 

incompetence. An AJ sustained two of the three charges against the petitioner and affirmed her 
37 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

removal. The petitioner filed a PFR with the Board. However, the Board, citing section 713(e)(2), 

pointed out that Congress, in passing the then-new law, specifically precluded the full Board from 

reviewing AJs’ decisions under the Act, and thus the Board refused to take any further action on her 

appeal. The petitioner then petitioned to the Federal Circuit, asking the Court to review the 

constitutionality of the statute governing her removal and the process afforded to her under that law. 

The Court held that the Act impermissibly vested significant authority in the Board’s AJs in violation 

of the Appointments Clause. Without reaching the issue of whether AJs are “inferior Officers” for 

purposes of the Appointments Clause, the Court nevertheless concluded that the power to affirm or 

overturn a removal decision by the Secretary of Veterans Affairs is significant and therefore the 

portions of section 713 that expressly pertain to the finality of the AJs’ decision are invalid. The 

remedy, the court held, was for the invalid portions of the statute to be severed and to permit Board 

review of the AJ’s decision in this case. The Court remanded for the full Board to adjudicate the 

petitioner’s PFR, including her due process arguments if she chose to renew them.

Significant Opinions in Whistleblower Appeals Issued by the Other Circuit Courts in 

FY 2017

Acha v. Department of Agriculture, 841 F.3d 878 (10th Cir. 2016): The agency terminated the petitioner 

during his probationary period and he alleged that the termination was due to his protected 

disclosures to the Inspector General and his direct supervisor about violations of the Federal 

acquisition rules. In his OSC complaint, however, he cited only his disclosure to the Inspector 

General. Before the Board, he argued that he included in his OSC complaint information about his 

disclosure to his supervisor, but did not expressly allege to OSC that he was terminated on this basis 

because, at the time he filed his OSC complaint, disclosures made to supervisors in the normal course 

of duty were not protected. (This rule was subsequently changed by the Whistleblower Protection 

Enhancement Act.) The Board held that, by including information about the disclosure to his 

supervisor, the petitioner had exhausted this alleged protected disclosure before OSC, even though 

the allegation was not explicit. The Board thus found he had established jurisdiction, but denied 

corrective action on the merits. The Tenth Circuit reversed the Board’s jurisdictional determination, 

holding that the petitioner did not raise his claim about the disclosure to his supervisor sufficiently 

clearly before OSC to allow OSC to pursue an investigation. Merely including information about the 

claim was not sufficient. His failure to explicitly allege that he was terminated due to this disclosure 

was fatal to the exhaustion issue and thus to the Board’s jurisdiction. In making this determination, 

the 10th Circuit Court cited the U.S. Court of Appeals for the Federal Circuit’s decision in McCarthy v. 

Merit Systems Protection Board, 809 F.3d 1365 (Fed. Cir. 2016). 

Significant Opinions Issued by the U.S. Supreme Court in FY 2017

Perry v. Merit Systems Protection Board, 582 U.S. __, 137 S. Ct. 1975 (2017): In Perry, the Board 

dismissed the petitioner’s appeal for lack of jurisdiction, and told him that, if he was dissatisfied with 

the Board’s decision, he could seek judicial review with the Federal Circuit. The petitioner, however, 

sought review in the D.C. Circuit. The Board then requested that the matter be transferred to the 

Federal Circuit, because the D.C. Circuit did not have jurisdiction under the Whistleblower 

Protection Enhancement Act. The petitioner responded by arguing that because his initial Board 

appeal alleged discrimination, his case actually should be transferred to District Court pursuant to 

Kloeckner v. Solis, 568 U.S. _, 133 S. Ct. 596 (2012), in which the Supreme Court held that Federal 

employees challenging an agency action appealable to the Board who claim the action was 

discriminatory should seek review in District Court, rather than with the Federal Circuit, regardless 

of whether the Board decided the case on procedural grounds or on the merits. The D.C. Circuit 
38 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

agreed with the Board, finding that because the Board dismissed the petitioner’s appeal for lack of 

jurisdiction, Kloeckner did not apply, and so the Federal Circuit must hear the petitioner’s appeal. The 

petitioner challenged that ruling to the Supreme Court. A majority of the Supreme Court held that 

the proper review forum when the Board dismisses a mixed case on jurisdictional grounds is the 

District Court.
39 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2017

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service 

and merit systems. MSPB’s high-quality, objective merit systems studies provide value by assessing 

current management policies and practices, identifying innovative and effective merit-based 

management policies and practices, and making recommendations for improvements. These 

factors also help reduce the occurrence and costs of PPPs that negatively affect agency and 

employee performance. Overall, this benefits American taxpayers in terms of decreased 

Governmentwide costs and increased confidence that the Government is doing its job and 

appropriately managing the workforce.

During FY 2017, the Office of Policy and Evaluation (OPE) conducted 35 outreach events. These 

events ranged from consultation with agency staff and members of the public on MSPB research 

methods, to formal presentations at conferences (e.g., presentations at the June 2017 OPM Research 

Summit on employee engagement and addressing poor performance), and gatherings of stakeholders 

and practitioners (such as a briefing on nepotism to ethics advisors at the Department of Health and 

Human Services). The OPE Director also accompanied OMB and OPM staff to provide guidance to 

the 16 largest departments and agencies in complying with the human capital elements of OMB 

Memorandum M-17-22.

11

OPE research and publications were cited at least 59 times during FY 2017, in outlets such as 

national newspapers, specialty publications, testimony to Congress, and OMB guidance to agencies.

A 2014 MSPB study appears to be the origin of a provision in the NDAA for FY 2017 that 

eliminates DoD’s authority under 5 U.S.C. § 3326 to waive, during a national emergency, a 

longstanding restriction on the appointment of recently-retired military officers to the career civil 

service. In Veteran Hiring in the Civil Service: Practices and Perceptions, MSPB reported that a state of 

national emergency had existed since September 2001 and that DoD had appointed more than 

40,000 retired officers to civil service positions in DoD under that waiver during this period. MSPB 

noted that this outcome appeared inconsistent with Congressional intent in enacting 5 U.S.C. § 3326 

to ensure that positions in the career civil service were established and filled on the basis of merit, 

and to maintain employment opportunities for highly qualified civilians. Congress concurred with 

this assessment and acted accordingly.12

In FY 2017, MSPB published one merit systems study report:

 Adverse Actions: A Compilation of Articles

Two study reports are awaiting review and approval but cannot proceed until MSPB has a quorum 

of Board members.

MSPB also published other products, including:

 Issues of Merit (IoM) newsletters – Newsletters inform Federal leaders, employees, and 

stakeholders about merit principles and Federal hiring issues and practices through articles 

 

11 OMB Memorandum M-17-22, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian 

Workforce,” April 12, 2017.

12 The Senate Report 114-25 for the repeal of the 180 waiver cites MSPB’s report on veterans’ hiring entitled Veteran Hiring in the Civil 

Service: Practices and Perceptions.
40 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

that discuss current MSPB research and reports, noteworthy agency practices, and Federal 

HR policies and initiatives.

 Noteworthy Articles – These articles on selected merit systems or workforce management 

topics are posted on the MSPB website at a time or in a format the IoM newsletter does 

not readily accommodate. Topics this year included misconduct, effective management, 

and disciplinary actions. 

Summaries of Reports Released in FY 2017

 Adverse Actions: A Compilation of Articles (December 2016) provides an overview of key aspects 

of the civil service system’s process for taking an adverse action for reasons such as 

misconduct or poor performance. Its purpose is to inform policymakers (such as Members 

of Congress) and practitioners (such as agency managers and HR specialists) about key 

principles and provisions about an important and much-criticized aspect of civil service 

policy and Federal HR management.

FY 2017 Noteworthy Articles

MSPB also issued, in electronic form, three shorter documents on topical issues:

 Addressing Misconduct in the Federal Civil Service: Management Perspectives presents information 

about managers’ knowledge of the discipline and appeals system, how they use that system, 

and what forces may create barriers to action. The publication was intended for 

policymakers who may be considering changes to the discipline and appeals system.

 The Merit System Principles: Keys to Managing the Federal Workforce, is based on the 2016 report 

The Merit System Principles: Guiding the Fair and Effective Management of the Federal Workforce and 

recently updated content on the Merit System Principles page of the MSPB website. The 

guide’s purpose is to help agency leaders and managers better understand the core values of 

the career civil service and how to lead employees in a manner consistent with those values. 

OPE received many requests for copies of this guide and learned that OPM plans to use the 

guide in a supervisory course offered by its Eastern Management Development Center.

 Federal Employee Review Processes for Major Disciplinary Actions is an annotated diagram of 

avenues of appeal of an adverse action, which was used in presentations to OMB and 

agencies about adverse action procedures and protections.

FY 2016 Issues of Merit Newsletter Topics

MSPB published three IoM newsletter editions on topics such as misconduct and penalties, making a 

difference at work, stewardship and the MSPs, effective hiring, engagement, emotional exhaustion, 

sexual harassment trends, and Federal HR offices. 
41 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT 

IN FY 2017

As required by statute,13 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs14 and free from PPPs.15 OPM’s actions 

broadly affect the Federal workforce, multiple Federal agencies, and applicants for Federal jobs.

Each of OPM’s actions listed below have the potential to impact the effectiveness and efficiency of 

the Federal workforce (MSP 5) and/or fair and equitable treatment in a variety of contexts (MSP 2). 

Depending on the nature of a particular OPM action, it has the potential to affect or involve other 

specific MSPs. Additional MSPs that may be affected by a particular OPM action are noted in that 

action’s “Significance” section. In addition to tracking OPM’s actions in FY 2017, we requested and 

received input from OPM on the status of selected significant actions.16 

OPM Leadership

OPM describes its Governmentwide mission areas as follows:

 Developing and implementing effective and relevant human resources solutions to build an 

engaged, productive, and high-performing workforce; 

 Assisting agencies to recruit, hire, and retain the most qualified candidates for Federal service; 

 Advising and assisting agencies on strategic human resources management; 

 Developing effective compensation, work/life, and benefits packages; 

 Monitoring merit-based human resources practices so that all Federal employees operate in a fair 

and discrimination-free environment;

 Promoting recruitment practices that help agencies draw from the rich diversity of the 

American workforce; 

 Ensuring executive branch agencies’ accountability for compliance with the MSPs and Federal 

laws and regulations, including veterans’ preference; 

 Ensuring the suitability, trustworthiness, and/or eligibility for national security positions for 

Federal applicants, employees, appointees, active duty military personnel, and contractor staff by 

conducting background investigations which are used as a basis for these determinations by 

Federal agencies, and regulating the Governmentwide suitability program;

 Administering retirement, health benefits, long-term care and life insurance, dental, and vision, 

and flexible spending account programs for Federal employees, retirees, and their beneficiaries 

and maintaining the integrity of these programs; and 

 Advancing the goals of the Patient Protection and Affordable Care Act by overseeing the delivery 

of high quality, affordable health insurance coverage to Americans in need of such coverage.17

 

13 5 U.S.C. § 1206.

14 5 U.S.C. § 2301.

15 5 U.S.C. § 2302.

16 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 2017. Instead, it should be read in conjunction with previous MSPB reports of OPM’s significant actions. If we previously 

commented on a significant action in progress that was completed in FY 2017 we will not repeat those comments here. Also, when

we have commented on operational OPM programs in the past, and no significant changes have been made to those programs, our 

previous comments remain applicable.

17 OPM Strategic Plan FY 2014-2018, p. 3.
42 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

In addition, in 2017 OPM played an integral role in high-profile Administration initiatives including 

the Federal hiring freeze,18 plans to reduce the size of the Federal workforce, and efforts to 

maximize Federal employee performance.19 Congress also continued to show interest in the Federal 

hiring process.20 In 2017, OPM performed its functions without a confirmed Director or Deputy 

Director. In fact, OPM has not had a confirmed Director since July 2015, and has not had a 

confirmed Deputy Director since 2011. Nominations were made by President Trump in September 

2017 for OPM Director21 and in June 2017 for OPM Deputy Director.22

New Significant Actions of OPM

 December 2016 Final Rule Regarding the Annual Employee Survey (AES) Requirement and the 2017 

Federal Employee Viewpoint Survey (FEVS)

The NDAA for Fiscal Year 200423 required each executive agency to conduct an annual survey of its

employees. The purpose of the survey was to assess leadership and management practices that 

contribute to agency performance and employee satisfaction with (1) leadership policies and 

practices, (2) work environment, (3) rewards and recognition, (4) professional development and 

growth, and (5) the opportunity to contribute to achieving organizational mission. The Act required 

OPM to issue regulations prescribing the survey questions that should appear on the annual 

employee survey. In addition, the law required agencies to make annual survey results available to 

the public and post the results on their Websites. OPM issued final regulations in August 2006 

identifying 45 specific questions to be included on the annual employee survey.24 

To modernize the FEVS, OPM issued proposed regulations in February 2016 to reduce the number 

of specifically prescribed survey questions in the regulation from 45 to 11.25 OPM’s December 2016 

final rule included 5 additional questions that had been included in past versions of the FEVS.26

Therefore, OPM’s new regulations require 16 questions to satisfy the statute’s AES requirement. 

The FEVS includes the 16 required annual employee survey questions, eliminating the burden for 

each individual agency to administer its own survey.27 The FEVS includes each of these required 

questions among the 98 questions that appear on the FEVS every year—84 questions cover a variety 

of workplace topics and there are 14 demographic questions.28

Significance

Employee surveys are an important way to measure a variety of workforce-related issues. They can 

help organizations explore what they are and are not doing well. They also give employees the 

 

18 Presidential Memorandum of January 23, 2017, Hiring Freeze, 82 Fed. Reg. 8,493 (January 25, 2017).

19 OMB Memorandum M-17-22, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian 

Workforce,” April 12, 2017.

20 Eric Katz, “Lawmakers Task Trump Administration with Overhauling Federal Hiring,” Government Executive, July 14, 2017.

21 Nominations Received, 115th Cong., 1st sess., Congressional Record 163 (September 6, 2017): D 923.

22 Nominations Received, 115th Cong., 1st sess., Congressional Record 163 (June 26, 2017): D 699.

23 Pub. L. 108-136 § 1128.

24 Personnel Management in Agencies—Employee Surveys (Final rule), 71 Fed. Reg. 49,979 (August 24, 2006).

25 Personnel Management in Agencies (Proposed rule), 81 Fed. Reg. 6,469 (February 8, 2016).

26 Personnel Management in Agencies (Final rule), 81 Fed. Reg. 89,363 (December 12, 2016).

27 Personnel Management in Agencies (Proposed rule), 81 Fed. Reg. 6,471 (February 8, 2016).

28 OPM, 2016 Federal Employee Viewpoint Survey Technical Report, p. 4.
43 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

opportunity to express their opinions about the workplace, which can foster a greater sense of 

employee engagement. As a research organization, MSPB’s OPE relies heavily on employee surveys 

to produce its studies of merit systems and the Federal workforce. OPE has administered its Merit 

Principles Survey 10 times since 1983 to a representative sample of the Federal workforce to track a 

variety of workplace issues of interest to the Congress and President. In addition, OPE conducts 

smaller-scale surveys that address specific topics of interest to get a better understanding of how well 

the Government is managing its workforce in adherence to MSPs.

OPE has, however, also voiced concerns about the use of employee surveys and the need for survey 

administrators to minimize their possible negative consequences.29 Such concerns have included: 

(1) ensuring that survey results are used to make meaningful organizational changes; (2) not allowing 

enough time between survey administrations for organizations to administer the survey, to analyze 

the survey results, to act on the results, and to evaluate those actions; and (3) possible survey fatigue 

among employees who may tire of filling out surveys.

Ensuring survey results are used to make meaningful organizational changes. There could be 

many reasons why employees perceive organizations fail to use survey results to make meaningful 

changes. These reasons may range from organizations lacking the will or expertise to effect positive 

change, to their inability to influence external forces or alter external constraints. In addition, even 

when organizations are able to use survey results to make positive organizational changes, employees 

may be unaware that their input was the seed from which that change grew. Whatever the reason, if 

employees perceive that their past survey input has not been used to make positive changes, they 

may become reluctant to continue providing that input. 

In 2017, OPM administered the FEVS for the eighth consecutive year, so we can assume that by 

now employees have an informed opinion of how their organizations use the FEVS results. Only 42 

percent of the employees who responded to the FEVS item, “I believe the results of this survey will 

be used to make my agency a better place to work,” actually agreed with that statement.30 This may 

not, however, provide the full picture regarding employee views on the positive use of FEVS data. If 

we assume that employees who do not think their organizations will use survey data to make 

positive changes are less likely to respond to surveys, it may also be instructive to examine the 

number of employees who did not bother to fill out the survey. Eighty-two percent of Federal 

employees to whom the 2017 FEVS was sent either did not respond, said they did not know, or did 

not agree that the results of the survey would be used to make their agency a better place to work.31

In addition, agency managers may not be aware if changes in FEVS scores are statistically 

significant—that is, whether the change is meaningful and not due to random chance. The 

Government Accountability Office (GAO) has noted that without understanding whether changes 

are statistically significant, managers may take action based on data that has limited meaning. For 

example, a manager might assume an annual increase in employee engagement scores meant specific 

 

29 See, for example: (a) MSPB, “Employee Surveys: Don’t Let Your Good Surveys Go Bad,” Issues of Merit, January, 2006, p. 2; 

(b) Merit Systems Protection Board Annual Report for Fiscal Year 2005, “Significant Actions of the Office of Personnel Management,” 

April 2006; (c) Merit Systems Protection Board Annual Report for Fiscal Year 2006, “Significant Actions of the Office of Personnel 

Management,” April 2007, p. 39; (d) MSPB, Managing for Engagement—Communication, Connection, and Courage, July, 2009, p. 71; 

(e) MSPB, “From Input to Impact: Using Survey Results,” Issues of Merit, January, 2012, p. 5; and (f) MSPB, “What Makes A ‘Best 

Place to Work?’” Issues of Merit, February, 2013, p. 2.

30 OPM, 2017 Federal Employee Viewpoint Survey Report by Agency, p. 121.

31 The 2017 FEVS was sent to 1,068,151 Federal employees and 486,105 responded (see 2017 Federal Employee Viewpoint Survey 

Governmentwide Management Report, p. 1); 292,419 respondents selected “Disagree,” “Strongly Disagree,” “Neither Agree nor Disagree,” 

or “Do Not Know” to FEVS item 41, “I believe the results of this survey will be used to make my agency a better place to work” (see 

2017 Federal Employee Viewpoint Survey Report by Agency, p. 121).
44 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

management efforts were successful when they were not, or assume an annual decline in scores 

meant specific efforts were not successful and abandon those efforts too soon.32 It is unlikely that

management action based on survey results that are not statistically significant will result in 

meaningful organizational change.

Not allowing enough time between survey administrations. Among the reasons that employees 

may perceive their survey input is not being used to make their agencies a better place to work may 

be that organizations simply do not have enough time to act on one year’s survey results before the 

next year’s survey is fielded. When agencies evaluate survey data, they typically implement 

improvement strategies to address problem areas. However, it may take more than one year to 

experience change as a result of those strategies. If agencies try to assess or judge the results based 

on annual survey responses instead of longer term trends, they could reach misleading conclusions. 

As GAO has noted, organizational improvement takes time and does not neatly follow the FEVS 

survey cycle; change may involve several efforts and effects are seen at different points in time.33

OPM’s December 2016 final regulation specified 16 survey questions that it believed covered the 

areas required by statute. It would be difficult for Federal agencies to analyze survey results, 

determine what courses of action should be taken to improve survey results, and analyze how those 

changes affected the workplace every year for 16 survey items—but this is not the task that Federal 

agencies have to undertake. The FEVS asks Federal employees 84 non-demographic questions every 

year about the workplace and OPM produces a number of reports regarding agency-level survey 

results. Agencies are therefore pressed to act on any FEVS item that is perceived to be deficient, 

whether the item relates to the areas identified in the statute or not. 

Possible survey fatigue. The FEVS has been administered to between 500,000 and 1,500,000 

Federal employees over the past eight years. In 2014, 2015, and 2016 it was sent to over 800,000 

employees and in 2017 to over 1,000,000. In 2017 OPM also administered the Federal Work-Life 

Survey to 200,000 Federal employees34 and administered the Federal Employee Benefits Survey to 

40,000 employees during the Fall of 2017.35 

From 2004-2010 OPM administered a Governmentwide survey every other year.36 The response 

rates for these biennial surveys were all over 50 percent, with the highest response rate achieved in 

2006—57 percent. Since 2011, when the FEVS became an annual endeavor, the response rates have 

been just under 50 percent, with the lowest response rate realized in 2017—45.5 percent.37 

OPM should consider periodically assessing whether these potential negative consequences are 

having an actual effect on the FEVS or the annual survey required by statute. If so, changes to the 

FEVS process may be warranted or recommendations should be made to Congress regarding the 

annual survey requirement.

 

32 GAO, Additional Analysis and Sharing of Promising Practices Could Improve Employee Engagement and Performance, July 2015, GAO-15-585, p. 26.

33 Ibid., p 18.

34 OPM Work-Life Announcements and News, Federal Work-Life Survey, December 20, 2016.

35 OPM Memorandum, 2017 Federal Employee Benefits Survey, August 29, 2017.

36 The Federal Human Capital Survey (FHCS, the predecessor to the FEVS) was administered in 2004, 2006, and 2008; the FEVS was 

first administered in 2010.

37 Sample size and response rates for the FHCS and the FEVS can be found in each year’s survey report at OPM’s FEVS website.
45 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

 Reforming the Federal Government and Reshaping the Federal Civilian Workforce

The Administration took a number of steps in 2017 to reshape the Federal workforce including 

instituting a hiring freeze;38 proposing to eliminate funding for programs that are unnecessary, 

outdated, or not working;39 and developing a plan to reorganize executive branch agencies.40 Among 

the activities that OPM completed that relate to these workforce reshaping initiatives were the 

issuance of a workforce reshaping handbook,41 administrative furlough guidance,42 and performance 

management guidance and successful practices that support maximizing employee performance.43

The workforce reshaping handbook provides assistance to agencies that are considering and/or 

undergoing some type of reshaping (e.g., reorganization, management-directed reassignment, 

furlough, transfer of function, and RIF). The handbook provides agencies with guidance, options, 

and, where necessary, specific operational procedures designed to ensure that reshaping efforts 

comply with merit system laws and regulations. It notes that the first step that management must 

take to prepare for workforce reshaping is to develop, review, analyze, and prioritize mission 

requirements. The handbook presents different options for minimizing or avoiding RIFs while also 

providing guidance on the RIF regulations.

An administrative furlough is a planned event by an agency which is designed to absorb reductions 

necessitated by downsizing, reduced funding, lack of work, or budget situations other than a lapse in 

appropriations. The administrative furlough guidance provides a number of questions and answers 

regarding many aspects of administrative furloughs for agencies and employees. 

OPM’s performance management guidance is designed to help agencies develop, apply, and 

implement performance appraisal systems that maximize employee performance through the 

effective implementation of the five components of the performance management process: 

(1) planning work and setting expectations and goals; (2) monitoring progress and performance 

continually; (3) developing an employee’s ability to perform in his or her current position; (4) rating 

periodically to summarize performance; and (5) rewarding performance.

Significance

As noted in the OPM guidance, any effective workforce reshaping effort should be rooted in the 

effective accomplishment of each agency’s mission. It should also be carried out in accordance with 

the MSPs and free from PPPs. 

MSPB research has found a relationship between higher levels of employee engagement and 

improved Federal agency outcomes.44 Agency leadership should realize that employee engagement 

may suffer during workforce reshaping efforts simply due to employee fears of changes that may or 

may not be planned in the workplace. Management should be as transparent as possible regarding 

 

38 Presidential Memorandum of January 23, 2017, Hiring Freeze, 82 Fed. Reg. 8,493 (January 25, 2017).

39 OMB, America First—A Budget Blueprint to Make America Great Again.

40 Executive Order 13781, Comprehensive Plan for Reorganizing the Executive Branch, March 13, 2017; and OMB Memorandum M-17-22, 

“Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce,” April 12, 2017.

41 OPM, Workforce Reshaping Operations Handbook—A Guide for Agency Management and Human Resources Offices, March 2017.

42 OPM, Guidance for Administrative Furloughs, March 2017.

43 OPM Memorandum for HR Directors, “Performance Management Guidance and Successful Practices in Support of Agency Plans 

for Maximizing Employee Performance,” July 17, 2017.

44 MSPB, The Power of Federal Employee Engagement, September 2008.
46 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

any planned workplace changes and should effectively communicate to employees what the changes 

are and why they are occurring. 

A focus on improving agency performance management practices is well-warranted as our 

research has shown that every positive performance management practice we reviewed is more 

widely used in agencies with higher level of employee engagement than in agencies with lower 

level of employee engagement.45

 Framework for the Continuing Development of Federal Senior Executives

In July 2017, OPM released the Framework for the Continuing Development of Federal Senior Executives, the 

result of a partnership between OPM and the Federal Chief Learning Officers Council.46 Coupled with 

OPM’s Supervisory and Managerial Frameworks and Guidance, the latest framework is intended to assist 

senior agency leaders with effective talent management and succession planning efforts and to assist 

agency instructional designers and training managers to chart leadership development. The framework 

incorporates mandatory training, recommended key leadership behaviors, developmental objectives, 

and developmental opportunities at each specific stage of an executive’s lifecycle of learning. 

Significance

The importance of the Senior Executive Service (SES) to overall Federal operations cannot be 

overstated. The SES was established with the passage of the CSRA of 1978. The CSRA envisioned 

the SES as a corps of executives who would possess a broad Government perspective and would be 

capable of serving in multiple leadership positions across Government agencies. The purpose of the 

SES was “to ensure that the executive management of the Government of the United States is 

responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.”47

The decisions made by members of the SES can have broad implications. Approximately one-third 

of career senior executives, each manage more than 200 employees or are responsible for budgets 

that exceed $100 million.48

In our 2015 report on the training and development of members of the SES, we noted that 

investment in executive training and development can yield substantial returns in the form of higher 

performance. However, at that time, there appeared to be no systematic way that senior executives 

were trained and developed. In some agencies, the training and development of career senior 

executives was managed centrally, in some it was managed locally, and in others it was a 

combination of the two. The number and types of training offered executives varied widely across 

agencies and perhaps between units within the same agency. In addition, we found that only half of 

career senior executives had completed an executive development plan to guide their developmental 

activities as stipulated by regulation.49 It appears that OPM’s new framework should help address 

these shortcomings.

Our 2015 report also found that a sizeable portion (30 percent) of career senior executives indicated 

that their developmental needs were not met. The main reasons given were the inability to take time 

away from the job and lack of funding. While executives are responsible for their own development, 

 

45 MSPB, Managing for Engagement—Communication, Connection, and Courage, July 2009.

46 OPM Memorandum, “Framework for the Continuing Development of Federal Senior Executives,” July 27, 2017.

47 5 U.S.C. § 3131.

48 MSPB, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. 6-7.

49 MSPB, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, p. i.
47 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

agencies are also responsible for providing the tools that enable success—including training.

Formalizing what is expected of both executives and agencies regarding executive development via 

the new framework may help executives receive the development they require.50

Although improved development of Federal executives is necessary and welcome, agencies should

recognize the limitations of training. Merely attending training courses does not guarantee that 

executives have acquired the competencies those courses purport to impart. Additionally, some 

competencies needed to excel as a Federal executive—such as motivation and mental style 

competencies—may not be well-suited to development through training.51 Accordingly, Federal 

agencies should maintain sound programs for selecting executives and take appropriate action when 

an executive is unable or unwilling to adequately carry out required responsibilities. 

In addition to MSP 5, efforts to improve the training and development of Federal executives relate 

to MSP 7 which states that employees should be provided effective education and training in cases 

where better organizational and individual performance would result. 

 Governmentwide Survey of Federal Work-Life Programs

In October 2016, Acting OPM Director Beth Cobert announced that OPM would administer a 

Federal Work-Life Survey in early 2017.52 The aim of the survey was to support OPM’s continuing 

efforts to develop and sustain an engaged, innovative, and productive Federal workforce. The survey 

is also part of OPM’s commitment to supporting agencies as outlined in the June 23, 2016, 

Presidential Memorandum, “Enhancing Workplace Flexibilities and Work-Life Programs.”53

In early 2017, OPM fielded the Federal Work-Life Survey to nearly 200,000 employees as an 

opportunity to: 

 Support agencies in their efforts to implement and expand the use of work-life programs and 

workplace flexibilities to recruit and retain talent and improve productivity; 

 Promote evidence-based decision-making through evaluation of the relationship between 

work-life programs and their intended outcomes (e.g., increased employee engagement, 

performance, improved health, reduced absenteeism, improved retention); 

 Obtain employee perspectives to identify barriers that may unnecessarily restrict the use of

work-life programs; and 

 Support individual agencies in understanding employee needs and behaviors in order to 

build more effective programs.54

The response rate for OPM’s 2017 Federal Work-Life Survey was 38 percent.55 As noted earlier in 

this review of OPM significant actions, this low response rate could indicate growing Federal 

employee fatigue with responding to surveys.

 

50 MSPB, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. i-ii.

51 MSPB, Making the Right Connections: Targeting the Best Competencies for Training, February 2011.

52 OPM Memorandum, “Governmentwide Assessment of Federal Work-Life Programs,” October 25, 2016.

53 Presidential Memorandum of June 23, 2014, “Enhancing Workplace Flexibilities and Work-Life Programs,” 79 Fed. Reg. 36,625 

(June 27, 2014).

54 Status of OPM significant actions provided by OPM to MSPB, September 6, 2017.

55 Status of OPM significant actions provided by OPM to MSPB, September 6, 2017.
48 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

OPM is currently analyzing the survey data to create a summary and agency specific reports, which 

OPM anticipates will be issued in FY 2018. OPM will use the findings to: support agencies in policy 

development and successful implementation; facilitate cost-saving opportunities for partnership, 

collaboration, and learning; and establish Governmentwide policies and guidance.

Significance

OPM states that the primary goal of the survey was to determine the value of work-life programs as 

a strategic agency business practice and to address the following broad research questions across the 

Government and within agencies:

 Are Federal work-life programs meeting the current and future needs of employees?

 Are Federal work-life programs accessible and used by employees?

 Are Federal work-life programs effective in producing intended outcomes?

 What are the barriers that unnecessarily restrict the use of Federal work-life programs?56

Efforts to effectively use work-life programs to increase employee engagement and help retain valued 

employees is laudable. Previous MSPB research found a relationship between higher levels of 

employee engagement and improved Federal agency outcomes. Specifically, in agencies where more 

employees were more engaged better program results were produced, employees used less sick leave, 

fewer employees filed equal employment opportunity complaints, and there were fewer cases of 

workplace injury or illness.57 Our subsequent research established the importance of effective 

performance management processes,58 job design, and rewards in improving employee engagement.59

As part of its analysis, OPM should consider conducting a Governmentwide cost-benefit analysis of 

the various work-life programs to fully understand how they contribute to improved agency 

outcomes and the retention of valued employees. Alternatively, OPM could assist the various 

agencies to conduct individual cost-benefit analyses to identify the true worth of these strategic 

business practices.

 

56 Status of OPM significant actions provided by OPM to MSPB, September 6, 2017.

57 MSPB, The Power of Federal Employee Engagement, September 2008.

58 MSPB, Managing for Engagement—Communication, Connection, and Courage, July 2009.

59 MSPB, Federal Employee Engagement—The Motivating Potential of Job Characteristics and Rewards, December 2012.
49 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

FINANCIAL SUMMARY

Fiscal Year 2017 Financial Summary

as of September 30, 2017

(dollars in thousands)

FY 2017 Appropriations

FY 2017 Appropriation $ 44,786

Civil Service Retirement and Disability Trust Fund 2,345

Total $ 47,131

Obligations Charged to FY 2017 Funds

Personnel Compensation $ 23,195

Personnel Benefits 7,017

Transportation of Things 28

Travel of Persons 281

Rents, Communications and Utilities 4,521

Printing and Reproduction 50

Other Services 2,746

Supplies and Materials 139

Equipment/Lease Improvements 776

Reimbursable Obligations 2,345

Total $ 41,097
50 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

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51 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

LIST OF ABBREVIATIONS AND ACRONYMS

ADA Americans with Disabilities Act of 1990

ADR Alternative Dispute Resolution

AFR Annual Financial Report

AJ Administrative Judge

ALJ Administrative Law Judge

APR-APP Annual Performance Report and Annual Performance Plan

CB Clerk of the Board

CEU Continuing Education Units

CFR Code of Federal Regulations

CHCO Chief Human Capital Officer Council

CIO Chief Information Officer

CSC Civil Service Commission

CSRA Civil Service Reform Act of 1978,

CSRS Civil Service Retirement System

DHS Department of Homeland Security

DMS Document Management System

DoD Department of Defense

DoI Department of the Interior

DoL Department of Labor

DWOP Dismissal without Prejudice

ED Executive Director

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity Commission

EPA Environmental Protection Agency

FEVS Federal Employee Viewpoint Survey

FERS Federal Employees’ Retirement System 

FLRA Federal Labor Relations Authority

FOIA Freedom of Information Act

FY Fiscal Year

GAO Government Accountability Office

GC General Counsel

GPRAMA Government Performance and Results Act Modernization Act of 2010

HQ Headquarters

HR Human Resources

IoM Issues of Merit

IRA Individual Right of Action

IS Internal Survey

IT Information Technology

MAP Mediation Appeals Program

MPS Merit Principles Survey

MSP Merit System Principles

MSPB Merit Systems Protection Board

NDAA National Defense Authorization Act

OEEO Office of Equal Employment Opportunity

OGE Office of Government Ethics

OGR House Committee Oversight and Government Reform

OMB Office of Management and Budget
52 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

OPM Office of Personnel Management

OSC Office of Special Counsel

PFR Petition for Review

PIO Performance Improvement Officer

PPP Prohibited Personnel Practices

RFQ Request for Quote

RIF Reduction-in-Force

SES Senior Executive Service

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act

VA Department of Veterans Affairs

VEOA Veterans Employment Opportunity Act

VERA Voluntary Early Retirement Authority

VSIP Voluntary Separation Incentive Plan 

WB Whistleblower

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
53 Merit Systems Protection Board Annual Report for FY 2017 January 19, 2018

U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

www.mspb.gov - @USMSPB on Twitter