Table of Contents 

FISCAL YEAR 2001 IN REVIEW ..........................................1 

BOARD MEMBERS...............................................................8 

BOARD ORGANIZATION ...................................................10 

SIGNIFICANT DECISIONS OF THE BOARD........................12 

SIGNIFICANT COURT DECISIONS ....................................23 

FY 2001 CASE PROCESSING STATISTICAL DATA ..............27 

MERIT SYSTEMS STUDIES ................................................40 

FY 2001 FINANCIAL SUMMARY ........................................46 

FOR ADDITIONAL INFORMATION ....................................47 
Fiscal Year 2001 in Review 

COMINGS AND GOINGS 

The Merit Systems Protection Board began Fiscal Year 2001 as it ended 

Fiscal Year 2000—with an Acting Chairman at the helm of the agency and a 

vacancy on the three-member Board yet to be filled. Before the end of the 

first quarter of the new fiscal year, however, the Acting Chairman had 

become Chairman, and the Board was once again at full strength. 

Following the adjournment of the 106 Congress, President Clinton on 

December 22, 2000, appointed Acting Chairman (and then Vice Chairman) 

Beth S. Slavet to serve as Chairman of the Board. On December 27, 2000, 

President Clinton filled the vacancy on the Board through his appointment 

of Barbara J. Sapin as a member of the Board and designated her to serve 

as Vice Chairman. 

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The new Vice Chairman and her staff arrived in early January 2001, as did 

a new General Counsel—the first political appointee to serve in that 

position—and a new Regional Director for the Western Regional Office. At 

the same time, the Board said farewell to two retiring headquarters office 

directors—the Chief Administrative Law Judge and the Director, Office of 

Regional Operations. By the end of 2001, three more office directors were 

preparing to retire, and January 2002 would see the departure of the Clerk 

of the Board, the Director of Policy and Evaluation, and the Regional Director 

of the Northeastern Regional Office. Bringing home the impact of the coming 

wave of retirements in the Federal Government, several other staff members 

announced plans to retire at the beginning of January 2002. 

To assist in dealing with the effects of these retirements, the Chief of Staff 

required all office directors to address succession planning in their annual 

business plans. Planning for projected retirements was also addressed in the 

Workforce Analysis and Workforce Restructuring Plan submitted to the Office 

of Management and Budget at the request of the Bush Administration and 

was a major discussion topic at the MSPB Senior Staff retreat at the 

beginning of October 2001. 
ADJUDICATION OF CASES 

During FY 2001, the Board continued to address the full range of both 

substantive and procedural issues that arise in the matters over which it has 

jurisdiction. It issued a number of significant decisions, which are 

summarized in the section of this report titled "Significant Decisions of the 

Board." The Board's principal reviewing court, the U.S. Court of Appeals for 

the Federal Circuit, also issued several important precedential opinions 

during the fiscal year, which are summarized in the section titled "Significant 

Court Decisions." 

The MSPB regional and field offices maintained their excellent record of 

case processing timeliness in FY 2001, with an average processing time of 

92 days. In addition, the rate at which initial appeals are settled by 

administrative judges increased to 57 percent of cases that are not 

dismissed—the highest settlement rate in any fiscal year since the Board 

launched its first settlement program in the mid-1980s. 

At headquarters, the Board members and the legal offices continued to 

focus on reducing the number of overage cases, targeting cases that had 

been pending for more than 300 days. By the end of the fiscal year, the 

Board had reduced the number of such cases to 45—a substantial reduction 

from the 92 cases pending for more than one year al the end of FY 1999. 

Because closing older cases has the effect of increasing average case 

processing time, the average time to process petitions for review (PFRs) at 

headquarters increased to 214 days in FY 2001. 

With the departure of the Chief Administrative Law Judge in January 2001, 

the Board decided to look into the feasibility of using other available legal 

resources to adjudicate cases that must be heard by an ALJ, rather than 

filling the vacant position. These cases consist primarily of complaints 

brought by the Special Counsel (including Hatch Act cases) and proposed 

agency actions against administrative law judges. In March 2001, the Board 

entered into an agreement with the National Labor Relations Board (NLRB) 

under which these cases are assigned to ALJs at that agency for 

adjudication. The NLRB judges issue initial decisions in the assigned cases, 

which are subject to a petition for review by the 3-member Merit Systems 

Protection Board. The original agreement was to end September 30, 2001, 

but the program has been so successful that the agreement was renewed for 

FY 2002. 

The Alternative Dispute Resolution (ADR) Working Group, established by 

Chairman Slavet in the previous fiscal year, continued its work in FY 2001. 

The Group has a twofold purpose—to explore ways in which the Board can 
expand its existing ADR program with respect to appeals after they are filed 

with the MSPB, and to prepare for the eventual enactment of legislation 

authorizing the Board to conduct a voluntary early intervention ADR pilot 

program to try to resolve certain personnel disputes before they result in a 

formal appeal. (See below under "LEGISLATIVE ACTION.") At the end of FY 

2001, upon the recommendation of the ADR Working Group, the Board 

entered into a contract with two ADR experts, who were the primary 

designers of the successful Postal Service REDRESS program, to develop a 

proposal for expanding the Board's use of ADR techniques and to conduct 

mediation training. Initial training is scheduled to begin by February 2002. 

During the fiscal year, the Board completed evaluations of four pilot 

programs aimed at improving MSPB adjudicatory procedures. The evaluation 

of the results of the survey of participants in cases where bench decisions 

were issued or hearings were held by video conference (reported in the FY 

2000 Annual Report) showed that both of these pilot programs, launched in 

1998, had been successful. The issuance of bench decisions allows cases to 

be closed more quickly, and video hearings result in cost savings for both 

the parties and the Board. Both bench decisions and video hearings have 

now been incorporated into the Board's standard adjudicatory procedures. 

The suspended case pilot program launched in November 1999 (reported 

in the FY 2000 Annual Report) was also evaluated in FY 2001. Under this 

program, if the parties to an appeal mutually request a 30-day suspension to 

pursue discovery and settlement efforts, the administrative judge will grant 

it, without requiring the parties to provide evidence and argument to support 

the request. A second 30-day suspension will be granted if the parties agree 

that further time is necessary. A recommendation to make the suspended 

case procedure permanent was submitted to the Board in FY 2001 and was 

approved early in FY 2002. The Board directed that public comments be 

solicited when publishing an amendment to the Board's adjudicatory 

regulations to incorporate the suspended case procedure. 

Finally, an evaluation of the expedited petition for review pilot program at 

headquarters was submitted to the Board near the end of FY 2001, with a 

recommendation that the program be made permanent. The purpose of the 

program (reported in the FY 2000 Annual Report) is to identify nonmeritorious PFRs that can be disposed of quickly so that the 3-member 

Board can focus its resources on complex and precedential cases. During FY 

2001, PFRs selected for the expedited program were closed in an average of 

54 days, compared to an average of 236 days for PFRs that were not 

selected for the program. 

The Board published three amendments to its adjudicatory regulations 
during FY 2001. The first amended Appendix II to 5 CFR Part 1201 to reflect 

the relocation of the MSPB Washington Regional Office to Alexandria, 

Virginia (65 FR 58902, October 3, 2000). The second amended the 

procedural rules for whistleblower appeals (5 CFR Part 1209) to allow an 

appellant to satisfy the Board's requirements for providing details of the 

protected disclosures and personnel actions raised in the appellant's 

complaint to the Special Counsel by filing Part 2 of the revised OSC 

Complaint Form, OSC-11 (65 FR 67607, November 13, 2000). The last 

amended 5 CFR Part 1201 to make several technical changes, including 

conforming certain citations in the Board's regulations to revised regulations 

of the Office of Personnel Management (66 FR 30635, June 7, 2001). 

MERIT SYSTEMS STUDIES 

During FY 2001, the Board issued one report of a merit systems study 

conducted by its Office of Policy and Evaluation (OPE) and four editions of 

the Issues of Merit newsletter. The report evaluated the Presidential 

Management Intern (PMI) program, which was established to attract 

master's graduates in public sector management to careers in Federal 

service. Findings from the Merit Principles Survey 2000 (to be issued as a 

full report in FY 2002) were released through several editions of the Issues 

of Merit newsletter. The PMI report, the findings from the Merit Principles 

Survey that were released in FY 2001, and other topics covered in the Issues 

of Merit newsletter, are summarized in the section of this report titled "Merit 

Systems Studies." 

The Office of Policy and Evaluation also completed work on three other 

merit systems studies during the fiscal year and submitted the reports to the 

Board for approval. All three were approved early in FY 2002 and were 

scheduled for release over the next several months. These reports are: (1) 

The Office of Personnel Management in Retrospect: Achievements and 

Challenges After Two Decades; (2) The Federal Merit Promotion Program: 

Process vs. Outcome; and (3) Assessing Federal Job-Seekers in a Delegated 

Examining Environment. 

The OPE staff also continued to serve as a valuable resource for the Board 

in meeting internal agency research needs. The office plans customer 

satisfaction surveys with respect to both adjudication and the merit systems 

studies program in FY 2002. 
LEGISLATIVE ACTION 

Two significant pieces of legislation that would affect the Board's 

adjudicatory program were considered in the first session of the 107

Congress. The first was the Whistleblower Protection Act Amendments of 

2001 (S. 995), introduced by Senator Daniel K. Akaka (D-HI), Chairman of 

the Subcommittee on International Security, Proliferation and Federal 

Services of the Senate Governmental Affairs Committee. A companion House 

bill, H.R. 2588, was subsequently introduced by Rep. Constance Morella (RMD). 

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Chairman Slavet testified at the hearing on S. 995 held by Sen. Akaka's 

subcommittee on July 25, 2001. While she advised the subcommittee that 

the Board, as a neutral third-party adjudicatory body, would take no position 

on the bill, she offered several observations on its probable impact. She 

noted that the clarifications of whistleblower protections proposed by the bill 

could be expected to result in more disclosures being protected. As a result, 

the Board would expect its whistleblower appeals caseload to increase and 

also would expect that more whistleblower appeals would receive a full 

adjudication on the merits, rather than being dismissed for lack of 

jurisdiction. 

Chairman Slavet also addressed other provisions of S. 995 that would have 

a direct impact on the Board, including the provision authorizing the Special 

Counsel to seek judicial review of final Board decisions in whistleblower and 

Hatch Act cases and the provision allowing appellants and the Director of 

OPM to seek judicial review of Board decisions in the regional circuit courts 

of appeals, rather than only in the United States Court of Appeals for the 

Federal Circuit. 

Following the hearing, the Board responded to additional questions from 

the subcommittee and provided requested statistical information about 

whistleblower appeals. Both the Senate and House versions of the 

Whistleblower Protection Act Amendments remained pending at the end of 

the year. 

The other legislative proposal that would directly affect the Board is H.R. 

1965, introduced by Rep. George Gekas (R-PA). This bill, a modified version 

of a bill introduced by Rep. Gekas in the 106 Congress (H.R. 3312) and 

passed by the House, would authorize the Board to conduct a 3-year pilot 

program to test the use of voluntary alternative dispute resolution in the 

early stages of certain personnel disputes—that is, before the dispute results 

in a formal appeal to the Board. There was no formal legislative action on 

the bill, which would also authorize a new pay schedule for MSPB 

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administrative judges, by the end of the year. 

With the current authorization for the Merit Systems Protection Board due 

to expire at the end of FY 2002, the Board also began the reauthorization 

process in FY 2001. As required by law, the Board submitted proposed 

reauthorization legislation to its House and Senate authorizing committees in 

May 2001. There was no formal legislative action in the first session of the 

107 Congress, but the Board expects reauthorization legislation to be 

introduced and considered in the second session. 

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OUTREACH AND PUBLIC INFORMATION 

The Board continued its emphasis on outreach during FY 2001, 

participating in approximately 180 outreach events. The Board members and 

attorneys from the headquarters legal offices, as well as administrative 

judges from the regional and field offices, participated in conferences and 

addressed groups representing both employees and agency management. 

Topics included updates on recent significant decisions of the Board and the 

U.S. Court of Appeals for the Federal Circuit, Board procedures and 

regulations, and various substantive areas of the law applied by the Board. 

There was particular emphasis on the Board's ADR initiatives in the outreach 

events of FY 2001. In addition, a number of mock hearings were held. 

The OPE staff maintained an active outreach program to increase the 

impact of the Board's merit systems studies. OPE staff participated in 

interagency or intergovernmental discussions and provided presentations on 

a full range of human resources management issues and topics that have 

been the subject of MSPB reviews. 

So that all employees, both in headquarters and the regional and field 

offices, are aware of outreach appearances by other employees, the Board 

maintains an electronic Outreach Calendar that is available to the entire staff 

at any time. Use of the Outreach Calendar avoids scheduling conflicts and 

enables employees who are addressing the same or similar topics to discuss 

their presentations with each other. 

The Board also took a number of steps in FY 2001 to enhance its public 

information programs. In particular, a video in which MSPB employees 

describe the appeals process was completed during the fiscal year and 

released (in both videotape and CD-ROM formats) early in FY 2002. The 

Board's public information publications were also updated, and new "fill-in" 

versions of the MSPB Appeal Form and the Petition for Review Form were 

posted to the MSPB Web site (www.mspb.gov). The Board also began the 

process—which it expects to complete by January 2002—of adding key 
precedential decisions issued between 1979 and 1994 to the decisions 

database on its Web site; previously, only decisions issued since the Web 

site was launched in 1994 have been available. Testing of two list servers 

(listservs) for the Web site was in the final phase at the end of the fiscal 

year, and the listservs were implemented early in FY 2002. One listsery

allows individuals to subscribe to receive Board decisions when they are 

posted to the Web site, while the other provides notification to subscribers 

when a new merit systems study is released. 

AFTERMATH OF SEPTEMBER 11TH 

The Board and its employees ended FY 2001—like all Americans—in a state 

of shock over the devastation caused by the terrorist attacks of September 

11 . Even while the thoughts of everyone at the MSPB were with those lost 

in the attacks and with their families and friends, steps had to be taken 

within a matter of days to deal with practical matters in case processing 

affected by the attacks. 

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The Board's New York Field Office, just a few blocks from the World Trade 

Center, was evacuated following the attack in New York and remained closed 

for several weeks. Fortunately, all MSPB employees there were unharmed. 

The Board's headquarters in Washington closed soon after the attack on the 

Pentagon, and other MSPB offices throughout the country closed early that 

day. Telephone service was disrupted in New York, circuits were overloaded 

in Washington, and mail pickup and delivery were affected throughout the 

country. 

Each of these factors impacted the daily sending and receiving of 

documents in the process of adjudicating cases both at Board headquarters 

and in the regional and field offices. Therefore, the Board quickly 

implemented several variations in normal case processing procedures in the 

aftermath of the attacks and announced the policy through a press release, 

a posting on its Web site, and a notice published in the Federal Register. 

Under this policy, all filings due to the New York Field Office were to be 

made instead to the Northeastern Regional Office in Philadelphia until the 

New York office reopened (which it did in October). Administrative judges in 

the regional and field offices were to exercise discretion in accepting filings 

due on September 11 that were made after that date. At headquarters, the 

Clerk of the Board was to exercise similar discretion with respect to filings 

made there. Finally, where case files were destroyed in the attacks—as was 

the case with several Federal agencies in the World Trade Center—

appropriate continuances were to be granted until the case files could be 

reconstructed, and MSPB offices would assist in the reconstruction of such 

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files. 

As FY 2001 ended, these variations in procedures were being applied by 

the Board and its judges so that no party to a MSPB proceeding would be 

adversely affected by the events of September 11th. Only a few weeks into 

FY 2002, however, the Board was presented with a new challenge as a result 

of the discovery of anthrax-contaminated mail in Washington, DC, and New 

York. 

With the sudden closing of Washington's main mail sorting facility, and the 

decision to stop delivery of mail to Federal agencies until it could be treated, 

the Board's headquarters had no incoming mail for a 4-week period. Even 

after mail delivery was resumed, only a few filings were received each day. 

In the meantime, the FAX machine in the Office of the Clerk of the Board 

worked overtime receiving facsimile filings. Mail service to the New York 

Field Office was also disrupted, as a result of both the September 11

attacks and the anthrax-by-mail incidents. The Board's ability to send case 

documents from its offices was also affected because, even after mail 

delivery to Federal agencies resumed, several agencies advised the Board 

that they would no longer accept documents sent by mail and asked that 

they be sent by facsimile or e-mail instead. 

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These events ensured that business at the Board would not be "business 

as usual" in FY 2002. Despite the adjustments that had to be made in the 

aftermath of September 11 and the anthrax-by-mail incidents, and with the 

need to accommodate the changes in personnel that will occur both on the 

Board and among the career staff in FY 2002, MSPB employees stand ready 

to meet the challenges that lie ahead and pledge to continue their proud 

tradition of outstanding service to the Board's customers. 

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As noted in last year's Annual Report, this publication is no longer required 

by statute but is published as a service to the Board's customers. (The 

statutory requirement for an annual report was "sunset" by the Federal 

Reports Elimination and Sunset Act, Public Law 104-66, as amended by 

Public Law 106-113.) The Annual Report is intended to be a companion to 

the annual Performance Report required by the Government Performance 

and Results Act. The FY 2001 Performance Report will be issued on or before 

March 31, 2002, and will contain additional information regarding the 

Board's achievements in FY 2001. 
Board Members 

CHAIRMAN 

BETH S. SLAVET was appointed Chairman of 

the Merit Systems Protection Board by President 

Clinton on December 22, 2000. From August 15, 

1995, following her nomination by President 

Clinton and confirmation by the Senate, she served 

as Vice Chairman of the Board. Additionally, she 

served as Acting Chairman from March 3, 2000, 

until her appointment as Chairman. Her term 

appointment to the Board expires March 1, 2002. 

Ms. Slavet served as Labor Counsel to the 

Committee on Labor and Human Resources of the 

U.S. Senate from March 1993 until January 1995. 

Previously, she was Legislative Counsel and Staff 

Director for U.S. Representative Chester Atkins (DMA). From 1984 to 1992, Ms. Slavet practiced 

employment and labor law in Washington, DC. 

Prior to that, she served as the staff attorney to the American Federation 

of Government Employees Local 1812 in Washington, DC. She is a 

graduate of Brandeis University and received her J.D. degree from the 

Washington University School of Law. She is admitted to the District of 

Columbia Bar and is a member of the Federal Circuit and District of 

Columbia bar associations. 

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

Member, with no more than two of its three members from the same 

political party. Board members are appointed by the President, 

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

terms. 
VICE CHAIRMAN 

BARBARA J. SAPIN was appointed as a 

member and Vice Chairman of the Merit Systems 

Protection Board by President Clinton on December 

27, 2000. From 1995 until the time of her 

appointment, she served as General Counsel to the 

American Nurses Association (ANA). Previously, Ms. 

Sapin served as ANA's Labor Counsel from 1990 to 

1995. From 1981 to 1990, she held several 

positions at the National Labor Relations Board, 

including attorney for the Appellate Court Branch, 

Washington, DC; field attorney in the Chicago 

Regional Office; and Senior Counsel to a Board 

member in Washington, DC. Ms. Sapin received her 

B.A. in Psychology from Boston University and her 

J.D. from Columbus School of Law, Catholic 

University of America. She is admitted to the District of Columbia Bar. 

MEMBER 

SUSANNE T. MARSHALL was sworn in as 

Member of the Board on November 17, 1997, 

following her nomination by President Clinton and 

confirmation by the Senate. Her term appointment 

expires March 1, 2004. From December 1985 until 

her appointment, she served on the Republican staff 

of the Committee on Governmental Affairs of the 

United States Senate as both Professional Staff and 

Deputy Staff Director. While on the committee staff, 

she was responsible for a variety of legislative 

issues under the committee's jurisdiction, including 

Federal workforce policies, civil service matters, and 

postal issues. In addition, she reviewed and 

processed all nominations under the jurisdiction of 

the committee. From 1983 to 1985, Ms. Marshall 

was Republican Staff Assistant to the House 

Government Operations Committee. She was Legislative Assistant to a 

Member from Georgia from 1981 to 1982. Ms. Marshall attended the 

University of Maryland branch campus in Munich, Germany, and the 

American University. 
Board Organization 

The Chairman, Vice Chairman, and Member adjudicate the cases 

brought to the Board. The Chairman, by statute, is the chief executive and 

administrative officer of the Board. Office heads report to the Chairman 

through the Chief of Staff. 

The Office of Regional Operations oversees the five MSPB regional 

offices (including five field offices), which receive and process initial appeals 

and related cases. Administrative judges in the regional and field offices are 

responsible for adjudicating assigned cases and for issuing fair and wellreasoned initial decisions. 

The Office of the Administrative Law Judge adjudicates and issues 

initial decisions in Hatch Act cases, corrective and disciplinary action 

complaints brought by the Special Counsel, proposed agency actions against 

administrative law judges, MSPB employee appeals, and other cases 

assigned by the Board. 

The Office of Appeals Counsel conducts legal research and prepares 

proposed decisions for the Board in cases where a party petitions for review 

of a judge's initial decision and in all other cases decided by the 3-member 

Board, except for those cases assigned to the Office of the General Counsel. 

The office also conducts the Board's petition for review settlement program, 

processes interlocutory appeals of rulings made by judges, makes 

recommendations on reopening cases on the Board's own motion, and 

provides research and policy memoranda to the Board on legal issues. 

The Office of the Clerk of the Board receives and processes cases filed 

at Board headquarters, rules on certain procedural matters, and issues the 

Board's Opinions and Orders. The office serves as the Board's public 

information center, coordinates media relations, produces public information 

publications, operates the Board's Library and on-line information services, 

and administers the Freedom of Information Act and Privacy Act programs. 

The office also certifies official records to the courts and Federal 

administrative agencies, and manages the Board's records and directives 

system, legal research programs, and the Government in the Sunshine Act 

program. 

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

provides advice to the Board and MSPB offices on matters of law arising in 

day-to-day operations. The office represents the Board in litigation, prepares 
proposed decisions for the Board on assigned cases, and coordinates the 

Board's legislative policy and congressional relations functions. The office 

also conducts the Board's ethics program and plans and directs audits and 

investigations. 

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

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

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

Congress and are distributed to a national audience. The office also conducts 

an outreach program and responds to requests from Federal agencies for 

information, advice, and assistance on issues that have been the subject of 

Board studies. 

The Office of Equal Employment Opportunity plans, implements, and 

evaluates the Board's equal employment opportunity (EEO) programs. It 

processes complaints of alleged discrimination and furnishes advice and 

assistance on affirmative action initiatives to the Board's managers and 

supervisors. 

The Office of Financial and Administrative Management administers 

the budget, procurement, property management, physical security, and 

general services functions of the Board. It develops and coordinates internal 

management programs and projects, including review of internal controls 

agencywide. It also administers the agency's cross-servicing arrangements 

with the U.S. Department of Agriculture's National Finance Center (NFC) for 

payroll and accounting services and APHIS Business Services for human 

resources management services. (Starting in June 2002, accounting services 

will be provided by the Bureau of the Public Debt.) 

The Office of Information Resources Management develops, 

implements, and maintains the Board's automated information systems to 

help the Board manage its caseload efficiently and carry out its 

administrative and research responsibilities. 

Significant Decisions of the Board 

ADVERSE ACTIONS – GENERAL 

Jones v. Department of Housing & Urban Development, 87 M.S.P.R. 269 

(2000) 

Agencies have an obligation to file a disability retirement application on 

behalf of an employee under the circumstances set out in 5 CFR 844.202. 

Further, in French v. Office of Personnel Management, 37 M.S.P.R. 496, in 

disability retirement appeals, the Board set forth procedures that must be 

followed as to apparently incompetent appellants. Here, in an adverse action 

appeal, the Board found that the administrative judge should inquire into 

whether the agency had any obligation to the appellant to file on her behalf. 

It then directed that if the agency is found to have that duty, procedures like 

those in French should be applied. Specifically, the agency and OPM should 

join in a "cooperative undertaking" so that the appellant's rights are not 

impaired on account of her possible incapacity. However, the decision did 

not determine whether the appointment of counsel should generally be 

required in adverse action appeals or reverse precedent holding French 

procedures inapplicable to adverse action appeals. 

Cross v. Department of the Army, 89 M.S.P.R. 62 (2001) 

An agency need not affix any label to its charges, but if it does so, it must 

prove the elements that make up its legaldefinition. It may, instead, use a 

broad label as long as the reasons for the proposed action are described in 

sufficient detail. Thus, that it used the words "falsified" and "falsely" in the 

narrative of a "conduct unbecoming" charge does not require it to prove the 

specific intent element for falsification under the requirements of Naekel v. 

Department of Transportation, 782 F.2d 975. However, in such a "conduct 

unbecoming" charge, intent remains relevant to assessing the 

reasonableness of the penalty. The Board also found that a charge of "false 

statements -deliberate misrepresentation of material fact" covers not only 

untrue statements, but also those that deliberately conveyed a misleading 

impression, and it defined "material" in that context. 

Gribcheck v. United States Postal Service, 87 M.S.P.R. 473 (2001) 

The Board sustained the appellant's removal for failure to submit to a 

psychiatric fitness for duty examination. Although the general rule is that an 

employee must obey an agency order and then protest its propriety later, 
the Board has held that this rule does not apply to a refusal to submit to an 

unauthorized psychiatric fitness examination. Here, the Board considered the 

rule in a case in which the Postal Service was the acting agency, because it 

is unclear whether the regulations applicable to fitness exams, at 5 CFR Part 

339, apply to the USPS. It noted that 39 U.S.C. § 1005(a)(2) gives a USPS 

preference eligible "only the rights granted to veterans by the Veterans' 

Preference Act." Since the right to refuse an examination is not enumerated 

in the Veterans' Preference Act, the Board concluded that the USPS is not 

subject to the requirements of 5 CFR Part 339. The agency's Employee and 

Labor Relations Manual controls instead. 

Wiley v. Department of Justice, 89 M.S.P.R. 542 (2001) 

This decision examined the law concerning searches of an employee's 

private property conducted on agency premises. Searches by Government 

employers of the private property of their employees are subject to the 

restraints of the Fourth Amendment, and a Federal employee's Fourth 

Amendment rights are implicated if his employer has "infringed an 

expectation of privacy that society is prepared to consider reasonable." A 

search is considered reasonable if the property owner consented to it; 

consent may be inferred from nonverbal actions. The test for whether there 

are "reasonable grounds" for a search of a Federal employee's property, as 

set out in O'Connor v. Ortega, 480 U.S. 709, was applied here to the case of 

an employee of a correctional institution when the agency sought to search 

for a loaded weapon in his vehicle in the agency's parking lot, did so, and 

turned up nothing. The record showed that after being notified of the search, 

the appellant got into his vehicle and drove off, returned later, and only then 

permitted the search. The Board held that the search was reasonable and 

based on a "reasonable suspicion." Moreover, the agency also had 

reasonable grounds for suspecting that a search wasnecessary for noninvestigative work-related purposes because it had a legitimate interest in 

ensuring that no unauthorized weapons were being stored in vehicles parked 

on the lot. 

ADVERSE ACTIONS – PENALTY ISSUES 

Omites v. United States Postal Service, 87 M.S.P.R. 223 (2000) 

An agency's "zero tolerance" policy alone is insufficient reason not to 

consider other Douglas factors in setting a penalty for proscribed conduct. 

Thus, where the deciding official failed to give appropriate consideration to 

the relevant Douglas factors, the Board will not defer to his penalty 

selection. 
Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452 (2001) 

This case discusses an exception to the general rule that evidence that an 

employee's medical condition played a part in the charged conduct is a 

significant mitigating factor. Specifically, the Board found that is not so in 

the absence of evidence that the impairment can be remedied or controlled, 

i.e., when the potential for rehabilitation is poor. In addition, the case held 

that an agency's failure to state in its notice of proposed removal that it will 

rely on an appellant's past disciplinary record is sufficient to prevent 

consideration of that disciplinary record by the deciding official or by the 

Board, and that this is an issue of due process at the agency level, so that 

the fact that the appellant addressed his past discipline before the Board 

does not remedy the agency's failure. 

ATTORNEY FEES 

Santella & Jech v. Special Counsel, Internal Revenue Service & Office of 

Personnel Management, 90 M.S.P.R. 172 (2001) 

Upon the request for reconsideration filed by the Direct() of OPM of the 

decision at 86 M.S.P.R. 48 (2000), the Board reaffirmed that attorney fees 

may be awarded under 5 U.S.C. § 1204(m) to a substantially innocent 

employee. That section of the law addresses disciplinary actions brought by 

the Special Counsel. The Board cautioned, however, that it did not thereby 

suggest that it will automatically apply every interpretation of the interest of 

justice standard under 5 U.S.C. § 7701(g) to cases under section 

1204(m)(1). 

Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001) 

Nichols v. Department of Veterans Affairs, 89 M.S.P.R. 554 (2001) 

The appellant must be a prevailir party in order to be entitled to an 

attorney fee award. The Board, in accordance with the majority of the circuit 

courts that had examined the issue, had previously awarded fees under the 

catalyst theory, which allows an award based on a defendant's voluntary 

change in conduct, without judicial sanction. However, in Buckhannon Board 

and Care Home, Inc. v. West Virginia Department of Health & Human 

Resources, 531 U.S. 1004, the Supreme Court rejected that theory as a 

basis for an award and heldinstead that an enforceable judgment on the 

merits or a court-ordered consent decree is necessary for "prevailing party" 

status and an award of attorney fees. Accordingly, in these appeals, the 

Board found that there is no basis for distinguishing "prevailing party" under 

5 U.S.C. § 7701(g)(1). It therefore overruled Board cases relying on the 

catalyst theory for awarding fees, including Joyce v. Air Force, 83 M.S.P.R. 
666, and followed the Supreme Court's decision. Applying the new rule to 

the instant cases, the Board held that because the appellants' appeals on the 

merits were dismissed as moot when the agencies unilaterally rescinded the 

actions appealed, they were not prevailing parties and were not entitled to 

fee awards. 

BACK PAY 

Morman v. Department of Defense, 90 M.S.P.R. 197 (2001) 

If the appellant is unable to work because of an accident or illness closely 

related or due to interim employment or because of the unlawful discharge, 

the period of disability should be included in her back pay period. Case law 

suggests that, if the EEOC determined that the appellant's work-related 

disability was related to unlawful discrimination, it would find that the 

agency improperly limited her relief by denying reinstatement and "lost 

wages" for the period during which she was unable to work. The Board 

remanded the case for inquiry into whether the "lost wages" award by EEOC 

equates to the same status quo ante relief the Board would award under the 

Back Pay Act. 

DISCRIMINATION ISSUES 

Bullock v. Department of the Air Force, 88 M.S.P.R. 531 (2001) 

This decision adjudicates an allegation of "perceived" discrimination and a 

general claim of disability discrimination. It applies the most recent Supreme 

Court precedent on disability discrimination issues and provides a general 

overview of the subject. Among other points, it finds that the first step in 

adjudicating a claim of "perceived" disability discrimination is to determine 

whether the agency mistakenly believed that an actual non-limiting 

impairment substantially limited one or more of the appellant's major life 

activities. Further, it states that to be substantially limited in the major life 

activity of working, one must be precluded from more than one type of job, 

a specialized job, or a particular job of choice, so that a situational limitation 

involving one particular location and supervisor does not meet the test. 

Carter v. Department of Justice, 88 M.S.P.R. 641 (2001) 

This case addresses many of the same issues as in Bullock, immediately 

above. The decision holds that the fact that an employee was terminated as 

a result of his medical condition is not sufficient to establish that the 
employer regarded him as substantially impaired in the life activity of 

working. It sets out the test for qualifying as disabled under the "regarded 

as" definition. An employee qualifies as disabled under the "regarded as" 

definition when: (1) An employer mistakenly believes that he has an 

impairment that substantially limits one or more major life activities; or (2) 

an employer mistakenly believes that an actual, non-limiting impairment 

substantially limits one or more major life activities. Thus, an employee who 

is merely regarded as disabled does not need an accommodation. Decisions 

holding that an appellant can establish that the agency regarded him as 

substantially limited in working without showing that it viewed him as 

foreclosed from performing jobs in his geographical area open to the 

average person having his comparable training, skills, and abilities in his 

geographical area, were overruled. The proof needed to show disability 

based on a record of an impairment was also restated. Specifically, under 29 

CFR 1630.2(k), an employee satisfies this definition of disability if he "has a 

history of, or has been mis-classified as having, a mental or physical 

impairment that substantially limits one or more major life activities." As 

with the "regarded as" definition, the appellant's removal for inability to do 

his job does not prove that claim. 

EMPLOYMENT PRACTICES 

Azdell & Fishman v. Meeker, et al., 87 M.S.P.R. 133 (2000), 88 M.S.P.R. 

319 (2001), 89 M.S.P.R. 88 (2001) 

The first of these decisions explored the rating scheme for the 

administrative law judge (ALJ) examination under 5 CFR 930.203 as 

implemented in 1996. Because implementation of the 1996 scoring formula 

involved the development and use of examinations and qualification 

standards, it constituted an employment practice, so that these challenges 

constituted appeals properly before the Board under 5 CFR Part 300A. The 

Board held that use of the 1996 scoring formula was not rationally related to 

performance in an ALJ position, so that the employment practice did not 

meet the basic requirements of 5 CFR 300.103(a) and (b). Nor did it accord 

with the Veterans Preference Act because it gave preference eligibles more 

of an advantage than Congress intended. A relief order commensurate with 

the harm caused was directed. 

On April 12, 2001, the Board issued its second decision in these appeals, 

an order staying the relief ordered, in part, for 60 days to allow the parties 

and the Board to examine the evidence and make determinations as to the 

outstanding compliance issues. During the period, OPM was ordered to stop 
issuing any ALJ registers and certificates of eligibles, and to withdraw and 

hold in abeyance any that had been issued since the merits decision was 

issued. On April 27, 2001, the Board denied the motion of the Social 

Security Administration (SSA) to intervene because its interest in the 

adjudication is not substantive, but just the quick completion of the process. 

Its participation was considered to be as amicus curiae. The Board also 

denied the request to lift the stay on compliance, finding that the risks of 

potential harm to the parties outweighed SSA's assurances that it would be 

hiring a sufficient number of people to provide relief to any class member. 

In the last of the three decisions, the Board denied OPM's reconsideration 

request concerning the first decision. The decision repeats and expands 

upon several of the holdings in that case, among them those addressing 

employment practices, 5 CFR 5.1(b), which authorizes the Director of OPM 

to allow a variation from OPM regulations, and veterans' preference. It also 

discusses several rules of statutory construction and addresses a new issue 

as to joinder. 

JURISDICTION - CONSTRUCTIVE ACTIONS 

Manlogon v. Environmental Protection Agency, 87 M.S.P.R. 653 (2001) 

Because the law of constructive demotions under Russell v. Department 

of the Navy, 6 M.S.P.R. 698, had 

become clouded, the Board used this case to clarify it. Although Hogan v. 

Department of the Navy, 81 M.S.P.R. 252, has been interpreted to hold that 

a constructive demotion can only be found where the higher graded position 

had been classified "subsequent to" the appellant's reassignment, the Board 

here found no reason for requiring a particular sequence of events. Thus, it 

overruled the "subsequent to" requirement in Hogan. However, it reaffirmed 

the rule that an argument that an appellant's position "should have been" 

upgraded does not suffice as a claim of constructive demotion. Finally, it 

held that the fact that the appellant's allegedly reclassified job was abolished 

without ever having been filled does not defeat the claim during the time 

period the job was classified at the higher level. The decision also discusses 

certain rules concerning position classification and when it becomes effective 

for purposes of this kind of case. 
JURISDICTION – GENERAL 

Edwards v. Department of Justice, 87 M.S.P.R. 518 (2001) 

This case discusses the Board's jurisdiction over claims that a nonselection action actually constitutes an appealable determination of 

unsuitability under 5 CFR Part 731. In it, the Board clarified its precedent to 

hold that a governmentwide bar to competitive service employment is not a 

jurisdictional prerequisite to a suitability appeal. That is, if an individual is 

found to be unsuitable for a position based on the reasons set forth under 

the suitability regulations issued by the Office of Personnel Management, see 

5 CFR 731.202, the Board may conclude that the candidate was subjected to 

an appealable constructive suitability determination. 

Campbell v. United States Postal Service, 88 M.S.P.R. 546 (2001) 

After noting that the rules for crediting time in a non-pay status for 

competitive service probationers do not apply to the excepted service, the 

Board concluded that the appellant's time in a non-duty status was 

creditable for purposes of her completion of one year of current continuous 

service in the Postal Service. 

PROCEDURAL ISSUES 

Vicente v. Department of the Army, 87 M.S.P.R. 80 (2000) 

Because a video-conference hearing was held over the appellant's 

objection, and the Board found thatthere are serious questions of witness 

credibility going to the central disputed facts in this case which the 

administrative judge might have resolved differently had she held that 

portion of the hearing in-person, it concluded that a portion of the hearing 

must be held in person. 

Milner v. Department of Justice, 87 M.S.P.R. 660 (2001) 

This decision clarifies Board policy on dismissals without prejudice and sets 

it out with specificity. That policy is that: "(1) A case will not be dismissed 

without prejudice to refiling simply to avoid exceeding the 120-day 

adjudication standard; (2) the dismissal of a case without prejudice to 

refiling will be granted or ordered only at the request of one or both of the 

parties or in order to avoid a lengthy or indefinite continuance; and (3) the 

dismissal of a case without prejudice to refiling is a procedural option that is 

left to the sound discretion of the administrative judge (citation omitted) but 
this discretion must be exercised in a manner consistent with the policies set 

forth in this Opinion and Order." The Board also held that a special rule 

concerning such dismissals applies to USERRA appeals; see summary of 

Milner under "USERRA, VEOA and VETERANS' RIGHTS" below. 

Dixon v. United States Postal Service, 89 M.S.P.R. 148 (2001) 

This case was remanded for application of the procedures required under 

French v. Office of Personnel Management, 37 M.S.P.R. 496, and to 

implement 5 CFR 844.202 (which sets requirements for when an agency 

must file a disability retirement application on the appellant's behalf) "in a 

manner that draws the Board, the employing agency, and OPM together in 

a cooperative undertaking to assure that persons of likely mental 

incapacity will not suffer impairment of their right to disability retirement 

benefits on account of their incapacity." In its decision, the Board set out 

instructions to the administrative judge as to his role in the process. 

Specifically, he should monitor the progress of the application, including 

setting reasonable time limits where appropriate, to ensure that the 

agency complies with its duty to prosecute the application in good faith 

and to ensure that OPM complies with its duty to process the application 

expediently and in good faith. He may join OPM as a party to the appeal, 

or initiate the procedures to request pro bono representation for the 

appellant, if he determines that such steps are appropriate or necessary. 

Additionally, he has the authority to vacate the initial decision to the 

extent necessary to facilitate any settlement agreement that the parties 

and OPM may reach. When OPM issues a decision, he is to ensure that the 

appellant and her representative, if she is represented at that time, 

understand her options, including requesting reconsideration and appealing 

to the Board. 

REEMPLOYMENT PRIORITY 

Sturdy v. Department of the Army, 88 M.S.P.R. 502 (2001) 

This decision discusses the Board's jurisdiction over reemployment priority 

issues. Its main holding is that separation by a reduction in force is not a 

jurisdictional requirement for a reemployment priority rights appeal. The 

Board modified or overruled decisions that may be inconsistent. The decision 

also notes that the RPL regulations are based on section 15 of the Veterans' 

Preference Act of 1944, presently codified at 5 U.S.C. § 3315, and on 5 

U.S.C. § 8151(b)(2). After finding that the appellant had standing to appeal 

a denial of his RPL rights, and that the three vacancies at issue were subject 

to both the RPL and the agency Priority Placement Program (PPP), the Board 

found that the appellant was entitled to an opportunity to show, on remand, 
that the agency violated his rights under either or both programs. 

RETIREMENT ISSUES 

Wallace v. Office of Personnel Management, 88 M.S.P.R. 375 (2001) 

This is the Board's first examination of the Federal Erroneous Retirement 

Coverage Corrections Act (FERCCA), Pub. L. No. 106-265, which was signed 

into law on September 19, 2000. Generally, it provides for the correction of 

retirement coverage errors for employees who were in the wrong system for 

a minimum of three years after December 31, 1986. The Board found that it 

applies to this appellant's case and directed OPM to provide him written 

notice of the error and an opportunity to elect CSRS-Offset coverage or 

FERS coverage, effective as of the date of that error. The appellant must 

then make his election within six months of receipt of that notice. 

Treziok v. Office of Personnel Management, 89 M.S.P.R. 361 (2001) 

In a disability retirement appeal, where the position description and 

medical evidence unambiguously and without contradiction indicate that the 

appellant cannot perform the duties or meet the requirements of the 

position, the Board may link the medical evidence to the duties and 

requirements and find that he is entitled to disability retirement. The 

appellant's failure to submit objective medical evidence cannot be the sole 

reason for denying him disability retirement. Thus, where there is no cure or 

specific treatment for Chronic Fatigue Syndrome (CFS), and the appellant's 

depression is related to the CFS, the Board found that his failure to seek 

psychiatric help does not preclude him from receiving disability retirement. 

The Board therefore found the appellant was entitled to disability retirement 

even absent a doctor's specific link between the appellant's medical/mental 

conditions and the specific duties of his job. 

Redmond v. Office of Personnel Management, 90 M.S.P.R. 4 (2001) 

This case examines the impact of an award of Social Security 

Administration benefits on a FERS disability retirement applicant. It first 

notes that where SSA arranged an examination of the appellant, the results 

are not disclosed except under the Freedom of Information Act, so that when 

the SSA award was submitted for the first time on petition for review, it 

constituted new evidence. On the merits, the decision reiterates that while 

the award of SSA benefits does not require the award of a FERS disability 

annuity, that award must be considered. Further, under SSA regulations, 20 

CFR 404.1527(f)(2)(i), an SSA medical consultant is defined as a "highly 
qualified physician." Here, the Board concluded that the appellant, who had 

received a disability award from SSA based on the examinations of a doctor 

and a vocational expert, was also entitled to a FERS disability retirement. In 

so holding, the Board pointed to the recency and depth of the experts' 

opinions, along with the evidence before OPM and the testimony at the 

hearing. 

USERRA, VEOA and VETERANS' RIGHTS 

Milner v. Department of Justice, 87 M.S.P.R. 660 (2001) 

An appellant's right to a hearing in a Board appeal qualifies as a "benefit of 

employment" under the Uniformed Services Employment and Reemployment 

Rights Act (USERRA). Such a benefit may not be denied to a person because 

of military service, so a refusal to reschedule a hearing if the appellant 

exercised a protected right under USERRA would violate the spirit if not the 

letter of USERRA. This case also holds that "to effectuate the USERRA 

statutory scheme ... a USERRA case that has been dismissed without 

prejudice to refiling will be considered automatically refiled by the date set 

forth in the dismissal order, unless there is evidence that the appellant has 

abandoned the case." 

Fox v. United States Postal Service, 88 M.S.P.R. 381 (2001) 

The burden of proof in USERRA cases, as clarified in Sheehan v. Navy, 240 

F.3d 1009, was discussed. Rather than a Title VII burden being appropriate, 

"in USERRA actions there must be an initial showing by the employee that 

military status was at least a motivating or substantial factor in the agency 

action, upon which the agency must prove, by a preponderance of evidence, 

that the action would have been taken despite the protected status." Based 

on this holding, the Board overruled its own decisions to the extent they 

conflict on the burden of proof issue. 

Eberhart v. United States Postal Service, 88 M.S.P.R. 398 (2001) 

The Postal Service is a "Federal executive agency" whose actions are 

covered by USERRA, and Board jurisdiction under USERRA includes the 

denial of a request for reassignment to a position in a different location, 

whether the employee can show that he has a right to such a reassignment 

or not. 
Augustine v. Department of Veterans Affairs & Office of Personnel 

Management, 88 M.S.P.R. 407 (2001) 

Although this decision does not resolve the issues of the appeal, it both 

sets out the showing required to prove jurisdiction under the Veterans 

Employment Opportunities Act (VEOA) and discusses how veterans' 

preference operates in filling competitive servicejobs, most specifically 5 

U.S.C. §§ 3112 and 3304. The decision then requests briefs on several issues 

necessary to a final decision in the appeal. 

Rogers v. Department of the Army, 88 M.S.P.R. 610 (2001) 

This case examined an agency's USERRA obligation under 5 

CFR 353.209(a), which provides that an employee may not be demoted or 

separated while on duty with the uniformed services except for cause. Thus, 

if the appellant's position is abolished during his absence, the agency must 

reassign him to another position of like status and pay, and because a detail 

is temporary, it does not fulfill the agency's USERRA obligation. The agency 

must reassign him regardless of the absence of any recruitment efforts. 

Further, in this case, as a result of the agency's failure to reassign the 

appellant, he was subject to a second RIF action, in lieu of which he retired. 

Under these circumstances, the Board found that he had been coerced into 

retirement by the agency's violation of his USERRA rights. 

Metzenbaum v. Department of Justice, 89 M.S.P.R. 285 (2001) 

The United States Court of Appeals for the Federal Circuit remanded this case 

to the Board for consideration of whether, pursuant to Board regulations, 

appellants in USERRA-based appeals may bring "mixed cases" before the 

Board, that is, affirmative defenses alleging discrimination on the basis of 

disability or any of the other types of discrimination covered by 5 U.S.C. 

§ 7702(a)(1). See 240 F.3d 1068 (2001). The Board examined the language and 

stated statutory purpose of USERRA in deciding the issue and reaffirmed its 

earlier determination, first set forth in Bodus v. Department of the Air Force, 

82 M.S.P.R. 508, that it lacks authority to reach such additional claims. Nor 

does Board authority allow for a decision on the merits of the underlying 

matter except to the extent necessary to address the appellant's military 

status discrimination allegations, it held. 
Ruffin v. Department of the Treasury, 89 M.S.P.R. 396 (2001) 

Under the VEOA, 5 U.S.C. § 3330a(a)(1), (d), a preference eligible who 

alleges that an agency violated his rights under any statute or regulation 

relating to veterans' preference, and who has exhausted his rights under 

that section before the Secretary of Labor, may file an appeal with the 

Board. This case decides the question of the extent of the Board's authority 

in such an appeal. The Board held that it lacks authority in a VEOA appeal to 

consider the merits of the personnel action at issue and any claims of 

discrimination covered under 5 U.S.C. § 7702(a)(1). Rather, its authority is 

limited to the claim of violation of the appellant's veterans' preference rights. 

WHISTLEBLOWER PROTECTION ACT 

Luecht v. Department of the Navy, 87 M.S.P.R. 297 (2001) 

This decision points out that the difference between 5 U.S.C. § 2302 

(b)(8) and 5 U.S.C. § 2302 (b)(9) is between reprisal based on disclosure of 

information and reprisal based on theexercise of a right to file an appeal, 

complaint, or grievance. The filing of an EEO complaint alleging 

discriminatory treatment in violation of Title VII does not constitute a 

whistleblowing disclosure under section 2302(b)(8), but instead, falls under 

section 2302(b)(9)(A). The decision, however, finds that coverage under 

section 2302(b)(9) does not necessarily exclude it from section 2302(b)(8), 

if the appellant also made a disclosure based on the same operative facts 

but outside of his (b)(9) activity. 

Kinan v. Department of Defense, 87 M.S.P.R. 561 (2001) 

Among other Whistleblower Protection Act (WPA)-related issues, this 

decision discusses the "reasonable belief' requirement. It holds that in 

determining whether the appellant had a reasonable belief in the truth of the 

matters he disclosed, the fact that the agency had conducted two 

investigations into the matters he raised, and issues arising from them, 

"lends a degree of legitimacy" to his claims. Under Lachance v. White, 174 

F.3d 1378, the Board is to consider the appellant's self-interest and potential 

bias, and the rule is that the fact that others may have shared the 

appellant's belief is not sufficient to find a reasonable belief. Nonetheless, 

the fact that his view was shared by others is not thereby made irrelevant; 

nor must every appellant's bias be viewed as dispositive. Where the 

appellant did not file EEO complaints on his own behalf, but complained to 

management about what he viewed as the agency's failures to remedy 
under-representation in the EEO Office and to enforce the sexual harassment 

policy, his allegations come within 5 U.S.C. § 2302(b)(8), as a

whistleblowing disclosure, not (b)(9), as one of retaliation for the exercise of 

an appeal, complaint, or grievance right. 

Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609 (2001) 

The Board's authority to award consequential damages under the WPA 

includes the authority to award compensation for future medical expenses 

which are the result of the retaliation and which can be proven with 

reasonable certainty. 

Arauz v. Department of Justice, 89 M.S.P.R. 529 (2001) 

When the Government's interests and good name are implicated in the 

alleged wrongdoing at issue by a private organization, and when the 

appellant shows that she reasonably believed that the information she 

disclosed evidenced that wrongdoing, the disclosure is protected under 5 

U.S.C. § 2302(b)(8). Cases holding or implying to the contrary were 

overruled, e.g., Coons v. Department of the Treasury, 85 

M.S.P.R. 631 (2000) . The decision also notes that evidence that would 

support a finding that the appellant would have been granted one kind of 

leave in the absence of her protected disclosures would not necessarily be 

sufficient to support a finding that she would have been granted another 

kind of leave in the absence of those disclosures. Denial of administrative 

leave is not the denial of a benefit under the WPA unless the agency has a 

policy of granting such leave in the same circumstances. 
Significant Court Decisions 

UNITED STATES SUPREME COURT 

United States Postal Service v. Gregory, 122 S.Ct. 431 (2001) 

The Supreme Court held that the Board may independently review prior 

disciplinary actions, including those that are still the subject of pending 

grievance procedures, when determining the reasonableness of a penalty 

imposed by the employing agency. In so holding, the Court vacated the 

Federal Circuit's decision in Gregory v. US. Postal Service, 212 F.3d 1296 

(Fed. Cir. 2000), and remanded for further proceedings. 

The Court held that independent review does not violate the statutory 

scheme of the Civil Service Reform Act of 1978. Where a termination is 

based on a series of disciplinary actions, some of which are minor, the 

Board's authority to review the termination must also include the authority 

to review each of the prior disciplinary actions to establish the penalty's 

reasonableness. The Court stated that if the Board's independent review 

procedure is adequate, then the review that an employee receives is fair. 

(The Supreme Court's decision was issued on November 13, 2001—early in 

FY 2002. It is included in the FY 2001 Annual Report because of its impact 

on the Federal Circuit's ruling in Gregory and on Board decisions applying 

the Federal Circuit's Gregory rule.) 

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 

DISABILITY 

Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 

2001) 

Regulations of the Office of Personnel Management (OPM) provide two 

ways for an agency to retain a disabled Federal employee: (1) assign the 

employee to an established vacant position at the same grade and pay; (2) 

accommodate the employee's disability in a way that enables the employee 

to perform the duties of his official position. However, a Federal employee is 

not disqualified for disability benefits under OPM regulations by virtue of his 

being given light-duty assignments in the same position. 
DUE PROCESS 

Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001) 

An employee's due process guarantee of notice and an opportunity to 

respond was not violated where a deciding official obtained information 

regarding pending charges through investigatory communications that did no 

more than confirm or clarify the record. The rule in Gregory v. U. Postal 

Service, 212 F.3d 1296 (Fed. Cir. 2000), vacated and remanded, U. Postal 

Service v. Gregory, No. 00-758 (U.S. Nov. 13, 2001) that an employing 

agency and the Board may not consider prior disciplinary actions taken 

against an employee that are the subject of ongoing proceedings challenging 

their merits does not apply to prior disciplinary actions pending before the 

Equal Employment Opportunity Commission on complaints of discrimination. 

Modrowski v. Department of Veterans Affairs, 252 F.3d 1344 (Fed. Cir. 

2001) 

It was arbitrary and capricious to charge an employee with "refusal to 

cooperate" where the agency, among other things, unfairly denied the 

employee the opportunity to consult with his attorney. 

JURISDICTION 

Kelley v. Merit Systems Protection Board, 241 F.3d 1368 (Fed. Cir. 2001) 

A reduction in pay is typically an adverse action over which the Board has 

jurisdiction. Therefore, the Board has jurisdiction where an agency 

transferred an employee from a full-time position to a part-time position 

unless it is clear that the employee suffered no reduction in pay. 

Monasteri v. Merit Systems Protection 

Board, 232 F.3d 1376 (Fed. Cir. 2000) 

The Board does not have jurisdiction over an appeal by a Foreign Service 

National employee where the employing agency terminated the employee 

pursuant to its "special plans for reduction in force in its foreign national 

employee programs" under 5 CFR 351.201(d). 
RETIREMENT – LEO CREDIT 

Pitsker v. Office of Personnel Management, 234 F.3d 1378 (Fed. Cir. 

2000) 

Federal law enforcement officers (LEOs) who retire on disability before 

they reach 50 years of age are nevertheless entitled to receive enhanced 

annuities under 5 U.S.C. § 8339(d)(1). The court declined to adopt OPM's 

interpretation of the statute because it was unpersuasive and would cause 

absurd results. 

Watson v. Department of the Navy, 262 F.3d 1292 (Fed. Cir. 2001) 

Under a legally correct construction of the statutes and regulations, a 

Federal police officer seeking LEO early retirement credit must prove that he 

or she occupied a position that primarily required the investigation, 

apprehension, or detention of criminals or suspects, rather than merely the 

protection of life or property, and that the duties of the position were so 

physically demanding as to necessitate his or her retirement at an unusually 

early age. 

SETTLEMENT AGREEMENTS 

Fomby-Denson v. Department of the Army, 247 F.3d 1366 (Fed. Cir. 

2001) 

It would be contrary to public policy to construe a settlement agreement to 

bar an agency from making a criminal referral to law enforcement 

authorities. 

USERRA, VEOA, and VETERANS' RIGHTS 

Brown v. Department of Veterans Affairs, 247 F.3d 1222 (Fed. Cir. 2001) 

Veterans are not accorded any preference under the Veterans' Preference 

Act when seeking promotions or intra-agency transfers. 

Fernandez v. Department of the Army, 234 F.3d 553 (Fed. Cir. 2000) 

The Veterans Programs Enhancement Act of 1998 did not make the 

substantive provisions of the Uniformed Services Employment and 

Reemployment Rights Act (USERRA) retroactive. The Board's authority is 

limited to enforcing an employee's rights as they existed at the time the 
claim accrued. 

Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001) 

An employee making a discrimination claim under USERRA bears the initial 

burden of showing by a preponderance of the evidence that the employee's 

military service was "a substantial or motivating factor" in an adverse 

employment action. Motivation or intent may be proven by either direct or 

circumstantial evidence. If the employee meets this burden, the employer 

then has the opportunity to come forward with evidence to show, by a 

preponderance of the evidence, that the employer would have taken the 

adverse action anyway, for a valid reason. 

WHISTLEBLOWER PROTECTION ACT 

Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed. Cir. 2001) 

Non-pecuniary damages are not recoverable under the Whistleblower 

Protection Act (WPA). 

Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 

2001) 

Complaints to a supervisor about the supervisor's wrongful conduct do not 

constitute "disclosures" under the WPA. However, complaints to a supervisor 

about other employees' conduct or other misconduct may be disclosures 

covered by the WPA. Reports made as part of an employee's assigned 

normal job responsibilities are not covered by the WPA when made through 

normal channels. 

Langer v. Department of the Treasury, No. 00-3388 (Fed. Cir. Sept. 18, 

2001) 

In an individual right of action (IRA) appeal, the standard for establishing 

subject matter jurisdiction and the right to a hearing is assertion of a nonfrivolous claim, while the standard for establishing a prima facie case in an 

IRA appeal is preponderant evidence. 
Meuwissen v. Department of the Interior, 234 F.3d 9 (Fed. Cir. 2000) 

A disclosure of information that is publicly known is not a "disclosure" 

under the WPA. The purpose of the WPA is to protect employees who 

possess knowledge of wrongdoing that is concealed or not publicly known 

and who step forward to help uncover and disclose that information. 

Singleton v. Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 

2001) 

The Board's orders in IRA appeals are not enforceable against State 

national guards or other State officials. 

Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) 

The court recognized that the Board and the court have taken different 

approaches to jurisdictional issues in IRA appeals. The court noted its 

precedent holding that the Board has jurisdiction in an IRA appeal if the 

appellant has exhausted his administrative remedies before the Special 

Counsel and makes non-frivolous allegations that: (1) he made a protected 

disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a 

contributing factor in a covered personnel action as defined by 5 U.S.C. § 

2302(a). When the Board's jurisdiction is clear, the court will not remand 

pursuant to Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. 

Cir. 2000), if the Board bypasses the question of its jurisdiction in order to 

decide the case on a non jurisdictional ground. 

The U.S. Court of Appeals for the Federal Circuit maintains a Web site at www.fedcirgov, which 

provides quick access to two other Web sites that make the court's decisions available. 
FY 2001 Case Processing 

Statistical Data 

SUMMARY TABLE OF MSPB DECISIONS IN FY 2001 

Regional Office (RO)/Field Office (FO) 

Decisions: 

 Appeals 6,259 

 Addendum Cases 1 814 

 Stay Requests 2 101 

TOTAL RO/FO Decisions 7,174 

ALJ Decisions - Original Jurisdiction Cases 3 12 

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Appeals 1,131 

 PFRs - Addendum Cases 130 

 Reviews of Stay Request Rulings 0 

 Requests for Stay of Board Order 6 

 Reopenings 4 11 

 Court Remands 6 15 

 Compliance Referrals 56 

 EEOC Non-concurrence Cases 2 

 Arbitration Cases 5 6 

 Subtotal 1,357 

 Original Jurisdiction 6 16 

TOTAL Board Decisions 7 1,373 

TOTAL Decisions (Board, ALJ, RO/FOs) 8,559 

See next page for footnotes.

34 
FOOTNOTES TO SUMMARY TABLE 

1 Includes 200 requests for attorney fees, 10 requests for compensatory 

damages (discrimination cases only), 8 requests for consequential damages 

(whistleblower cases only), 456 petitions for enforcement, 130 Board 

Remand cases, and 10 court remand cases. (Four of the petitions for 

enforcement were adjudicated at Board headquarters.) 

2 Includes 67 stay requests in whistleblower cases and 34 in nonwhistleblower cases. 

3 Initial Decisions issued by ALJ. Cases type breakdown: 1 petition for 

enforcement in an OSC corrective action, 1 request for attorney fees in an 

OSC disciplinary action (non-Hatch Act), 7 Hatch Act cases, 2 action against 

ALJs, and 1 petition for enforcement in an ALJ case. 

4 Includes 6 cases reopened by the Board on its own motion and 5 cases 

where OPM requested reconsideration. 

5 Includes 5 requests to review an arbitrator's award and 1 petition for 

enforcement in an arbitration case. 

6 Final Board decisions. Case type breakdown: 1 enforcement case in an 

OSC corrective action, 2 reopenings in OSC disciplinary actions (non-Hatch 

Act), 1 PFR in a Hatch Act case, 2 PFRs in actions against ALJs, and 10 

requests for regulation review. 

7 In addition to the 1,373 cases closed by the Board with a final decision, 

there were 2 interlocutory appeals decided by the Board in FY 2001. 

Interlocutory appeals typically raise difficult issues or issues not previously 

addressed by the Board. 

35 
Regional Decisions

36 
DISPOSITION OF INITIAL APPEALS DECIDED 

IN FY 2001 BY TYPE OF CASE

Type of Case Decided Dismissed

Not

Dismissed Settled Adjudicated

Adverse Action by Agency 2981 1326 44% 1655 56% 1187 72% 468 28%

Termination of 

Probationers

316 291 92% 25 8% 16 64% 9 36%

Reduction in Force 144 73 51% 71 49% 36 51% 35 49%

Performance 113 30 27% 83 73% 64 77% 19 23%

Acceptable Level of 

 Competence (WIGI)

32 15 47% 17 53% 13 76% 4 24%

Suitability 196 36 18% 160 82% 129 81% 31 19%

CSRS Retirement: Legal 537 211 39% 326 61% 19 6% 307 94%

CSRS Retirement: 

Disability

246 118 48% 128 52% 17 13% 111 87%

CSRS Retirement: 149 55 37% 94 63% 61 65% 33 35%

 Overpayment

FERS Retirement 692 255 37% 437 63% 178 41% 259 59%

Individual Right of Action 206 135 66% 71 34% 37 52% 34 48%

Other 647 554 86% 93 14% 50 54% 43 46%

Total 6259 3099 50% 3160 50% 1807 57% 1353 43%

Dismissed and Not Dismissed columns are percentage of Decided column 

Settled and Adjudicated columns are percent of Not Dismissed column 

TYPES OF INITIAL APPEALS DECIDED IN FY 2001 

Adverse Action (2981)

48%

Individual Right of Action 

(206)

3%

FERS Retirement (692)

11%

CSRS Retirement: 

Overpayment (149)

2%

CSRS Retirement: 

Disability (246)

4% CSRS Retirement: Legal 

(537)

9%

Performance (113)

2%

Other Appeals (647)

10%

Suitability (196)

3%

Reduction in Force (144)

2%

Acceptable Level of 

Competence (32)

1%

Termination of 

Probationers (316)

5%

Total Number of Initial Appeals: 6,259 

37 
DISPOSITION OF INITIAL APPEALS IN FY 2001 

THAT WERE NOT DISMISSED 

Reversed (291)

9%

Other (11)

0%

Affirmed (1006)

32%

Mitigated (45)

1%

Settled (1807)

57%

Total Number of Initial Appeals that were Not Dismissed: 3,160 

DISPOSITION OF INITIAL APPEALS ADJUDICATED ON THE 

MERITS (i.e., Not Dismissed or Settled) IN FY 2001 

Reversed (291)

22%

Mitigated (45)

3%

Other (11)

1%

Affirmed (1006)

74%

Based on 1,353 initial appeals adjudicated on the merits

(Percentages do not total 100% because of rounding) 

38 
INITIAL APPEALS DECIDED IN FY 2001 BY AGENCY 

Decided Dismissed1 Not Dismissed Settled2 Adjudicated 

OPM * 1551 570 36.8% 981 63.2% 293 29.9% 688 70.1%

Postal Service 1373 700 51.0% 673 49.0% 498 74.0% 175 26.0%

Veterans Affairs 485 288 59.4% 197 40.6% 141 71.6% 56 28.4%

Justice 421 209 49.6% 212 50.4% 157 74.1% 55 25.9%

Navy 366 191 52.2% 175 47.8% 115 65.7% 60 34.3%

Army 360 189 52.5% 171 47.5% 109 63.7% 62 36.3%

Treasury 255 142 55.7% 113 44.3% 68 60.2% 45 39.8%

Defense 218 115 52.8% 103 47.2% 76 73.8% 27 26.2%

Air Force 211 113 53.6% 98 46.4% 64 65.3% 34 34.7%

Transportation 191 122 63.9% 69 36.1% 48 69.6% 21 30.4%

Agriculture 170 88 51.8% 82 48.2% 44 53.7% 38 46.3%

Interior 161 81 50.3% 80 49.7% 52 65.0% 28 35.0%

Social Security 72 43 59.7% 29 40.3% 18 62.1% 11 37.9%

Health, Human Servs. 66 30 45.5% 36 54.5% 26 72.2% 10 27.8%

GSA 47 36 76.6% 11 23.4% 7 63.6% 4 36.4%

Commerce 39 31 79.5% 8 20.5% 6 75.0% 2 25.0%

Labor 39 24 61.5% 15 38.5% 11 73.3% 4 26.7%

Smithsonian 23 11 47.8% 12 52.2% 10 83.3% 2 16.7%

Energy 22 10 45.5% 12 54.5% 9 75.0% 3 25.0%

HUD 22 12 54.5% 10 45.5% 7 70.0% 3 30.0%

State 15 8 53.3% 7 46.7% 5 71.4% 2 28.6%

EPA 14 3 21.4% 11 78.6% 6 54.5% 5 45.5%

TVA 10 7 70.0% 3 30.0% 1 33.3% 2 66.7%

District of Columbia 9 4 44.4% 5 55.6% 2 40.0% 3 60.0%

Other 9 8 88.9% 1 11.1% 1 100.0% 0 .0%

SBA 9 6 66.7% 3 33.3% 2 66.7% 1 33.3%

GPO 8 6 75.0% 2 25.0% 2 100.0% 0 .0%

Education 7 6 85.7% 1 14.3% 1 100.0% 0 .0%

NASA 7 2 28.6% 5 71.4% 3 60.0% 2 40.0%

National Credit Union Adm. 7 4 57.1% 3 42.9% 0 .0% 3 100.0%

FEMA 6 5 83.3% 1 16.7% 1 100.0% 0 .0%

NARA 6 4 66.7% 2 33.3% 2 100.0% 0 .0%

FDIC 5 2 40.0% 3 60.0% 3 100.0% 0 .0%

Selective Service System 5 4 80.0% 1 20.0% 1 100.0% 0 .0%

Adm. Office of the US Courts 3 3 100.0% 0 .0% 0 .0% 0 .0%

EEOC 3 2 66.7% 1 33.3% 0 .0% 1 100.0%

NLRB 3 1 33.3% 2 66.7% 2 100.0% 0 .0%

Nat. Security Agency 3 2 66.7% 1 33.3% 1 100.0% 0 .0%

Peace Corps 3 2 66.7% 1 33.3% 1 100.0% 0 .0%

Railroad Retirement Board 3 1 33.3% 2 66.7% 1 50.0% 1 50.0%

Percentages may not add to 100 due to rounding. 

*Of the 1,551 appeals in which OPM was the agency, were retirement cases involving 

decisions made by OPM as the administrator of the Civil Service Retirement System and the 

Federal Employees Retirement System.

 

1

 Percentages in columns "Dismissed" and "Not Dismissed" are of "Decided." 

2 Percentages in columns "Settled" and "Adjudicated" are of "Not Dismissed."

39 
INITIAL APPEALS DECIDED IN FY 2001 BY AGENCY 

(continued) 

Decided Dismissed1 Not Dismissed Settled2 Adjudicated 

Soldiers' & Airmen's Home 3 1 33.3% 2 66.7% 1 50.0% 1 50.0%

Advisory Council onHistoric 

Preservation 2 1 50.0% 1 50.0% 1 100.0% 0 .0%

Commodity Futures Trading 

Commission 2 1 50.0% 1 50.0% 1 100.0% 0 .0%

Federal Election Comm. 2 2 100.0% 0 .0% 0 .0% 0 .0%

Federal Retirement Thrift 

Investment Board 2 0 .0% 2 100.0% 2 100.0% 0 .0%

Presidio Trust 2 2 100.0% 0 .0% 0 .0% 0 .0%

US International Dev. Agency 2 2 100.0% 0 .0% 0 .0% 0 .0%

Amer. Battle Monuments Comm 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Board for Internt'al Broadcasting 1 1 100.0% 0 .0% 0 .0% 0 .0%

Broadcasting Bd. Of Governors 1 0 .0% 1 100.0% 0 .0% 1 100.0%

Chemical Safety Hazard 

Investigation Board 1 1 100.0% 0 .0% 0 .0% 0 .0%

Consumer Product Safety Comm 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Farm Credit Administration 1 1 100.0% 0 .0% 0 .0% 0 .0%

FCC 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Federal Home Loan Bank Bd. 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Federal Housing Finance Bd. 1 0 .0% 1 100.0% 0 .0% 1 100.0%

Federal Trade Commission 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Holocaust Memorial Council 1 0 .0% 1 100.0% 0 .0% 1 100.0%

Inter-American Foundation 1 0 .0% 1 100.0% 1 100.0% 0 .0%

National Capital Planning Comm. 1 0 .0% 1 100.0% 1 100.0% 0 .0%

Nat'al Transportation Safety Bd. 1 1 100.0% 0 .0% 0 .0% 0 .0%

Office of the US Trade Rept. 1 0 0.0% 1 100.0% 0 .0% 1 100.0%

Pension Benefit Guaranty Corp. 1 1 100.0% 0 .0% 0 .0% 0 .0%

Purchase from Blind and Severe 

Handicapd 

 

1 0 .0% 1 100.0% 1 100.0% 0 .0%

TOTAL 6259 3099 49.5% 3160 50.5% 1807 57.2% 1353 42.8%

Percentages may not add to 100 due to rounding. 

 

1 Percentages in columns "Dismissed" and "Not Dismissed" are of "Decided."

2 Percentages in columns "Settled" and "Adjudicated" are of "Not Dismissed."

40 
INITIAL APPEALS ADJUDICATED* IN FY 2001 BY AGENCY 

Adjudicated Affirmed Reversed Mitigated/Modified Other 

OPM 688 479 69.6% 193 28.1% 5 .7% 11 1.6%

Postal Service 175 122 69.7% 36 20.6% 17 9.7% 0 .0%

Veterans Affairs 56 46 82.1% 8 14.3% 2 3.6% 0 .0%

Justice 55 42 76.4% 12 21.8% 1 1.8% 0 .0%

Navy 60 52 86.7% 8 13.3% 0 .0% 0 .0%

Army 62 54 87.1% 7 11.3% 1 1.6% 0 .0%

Treasury 45 37 82.2% 7 15.6% 1 2.2% 0 .0%

Defense 27 24 88.9% 2 7.4% 1 3.7% 0 .0%

Air Force 34 30 88.2% 3 8.8% 1 2.9% 0 .0%

Transportation 21 16 76.2% 2 9.5% 3 14.3% 0 .0%

Agriculture 38 22 57.9% 5 13.2% 11 28.9% 0 .0%

Interior 28 26 92.9% 1 3.6% 1 3.6% 0 .0%

Social Security 11 10 90.9% 1 9.1% 0 .0% 0 .0%

Health, Human Servs. 10 8 80.0% 2 20.0% 0 .0% 0 .0%

GSA 4 4 100.0% 0 .0% 0 .0% 0 .0%

Commerce 2 2 100.0% 0 .0% 0 .0% 0 .0%

Labor 4 4 100.0% 0 .0% 0 .0% 0 .0%

Smithsonian 2 1 50.0% 0 .0% 1 50.0% 0 .0%

Energy 3 3 100.0% 0 .0% 0 .0% 0 .0%

HUD 3 2 66.7% 1 33.3% 0 .0% 0 .0%

State 2 2 100.0% 0 .0% 0 .0% 0 .0%

EPA 5 4 80.0% 1 20.0% 0 .0% 0 .0%

TVA 2 2 100.0% 0 .0% 0 .0% 0 .0%

District of Columbia 3 3 100.0% 0 .0% 0 .0% 0 .0%

Other 0 0 .0% 0 .0% 0 .0% 0 .0%

SBA 1 1 100.0% 0 .0% 0 .0% 0 .0%

GPO 0 0 .0% 0 .0% 0 .0% 0 .0%

Education 0 0 .0% 0 .0% 0 .0% 0 .0%

NASA 2 1 50.0% 1 50.0% 0 .0% 0 .0%

National Credit Union Adm. 3 2 66.7% 1 33.3% 0 .0% 0 .0%

FEMA 0 0 .0% 0 .0% 0 .0% 0 .0%

NARA 0 0 .0% 0 .0% 0 .0% 0 .0%

Selective Service System 0 0 .0% 0 .0% 0 .0% 0 .0%

Adm. Office of the US Courts 0 0 .0% 0 .0% 0 .0% 0 .0%

EEOC 1 1 100.0% 0 .0% 0 .0% 0 .0%

NLRB 0 0 .0% 0 .0% 0 .0% 0 .0%

National Security Agency 0 0 .0% 0 .0% 0 .0% 0 .0%

Percentages may not add to 100 due to rounding. 

* ADJUDICATED means adjudicated on the merits, i.e., not dismissed or settled.

41 
INITIAL APPEALS ADJUDICATED* IN FY 2000 BY AGENCY 

(continued) 

Adjudicated Affirmed Reversed Mitigated/Modified Other 

Peace Corps 0 0 .0% 0 .0% 0 .0% 0 .0%

Railroad Retirement Board 1 1 100.0% 0 .0% 0 .0% 0 .0%

Soldiers' & Airmen's Home 1 1 100.0% 0 .0% 0 .0% 0 .0%

Advisory Council on Historic 

Preservation 0 0 .0% 0 .0% 0 .0% 0 .0%

Commodity Futures Trading 

Comm. 0 0 .0% 0 .0% 0 .0% 0 .0%

Federal Election Comm. 0 0 .0% 0 .0% 0 .0% 0 .0%

Federal Retirement Thrist 

Investment Board 0 0 .0% 0

.

0% 0 .0% 0 .0%

Presidio Trust 0 0 .0% 0 .0% 0 .0% 0 .0%

US International Develmt Agn. 0 0 .0% 0 .0% 0 .0% 0 .0%

American Battle Monuments 

Commission 0 0 .0% 0 .0% 0 .0% 0 .0%

Bd. For Internt'al Broadcasting 0 0 .0% 0 .0% 0 .0% 0 .0%

Broadcasting Bd. Of Governors 1 1 100.0% 0 .0% 0 .0% 0 .0%

Chemical Safety Hazard 

Investigation Board 0 0 .0% 0 .0% 0 .0% 0 .0%

Consumer Product Safety Com 0 0 .0% 0 .0% 0 .0% 0 .0%

Farm Credit Adm. 0 0 .0% 0 .0% 0 .0% 0 .0%

FCC 0 0 .0% 0 .0% 0 .0% 0 .0%

Fed. Home Loan Bank Bd. 0 0 .0% 0 .0% 0 .0% 0 .0%

Fed. Housing Finance Bd. 1 1 100.0% 0 .0% 0 .0% 0 .0%

FTC 0 0 .0% 0 .0% 0 .0% 0 .0%

Holocaust Memorial Council 1 1 100.0% 0 .0% 0 .0% 0 .0%

Inter-American Foundation 0 0 .0% 0 .0% 0 .0% 0 .0%

Nat'al Capital Planning Comm. 0 0 .0% 0 .0% 0 .0% 0 .0%

Nat'al Transportation Safety Bd 0 0 .0% 0 .0% 0 .0% 0 .0%

Office of the US Trade Rept. 1 1 100.0% 0 .0% 0 .0% 0 .0%

Pension Benefit Guaranty Corp 0 0 .0% 0 .0% 0 .0% 0 .0%

Purchase from Blind and Severe 

Handicapped 0 0 .0% 0 .0% 0 .0% 0 .0%

TOTAL 1353 1006 74.4% 291 21.5% 45 3.3% 11 .8%

Percentages may not add to 100 due to rounding. 

* ADJUDICATED means adjudicated on the merits, i.e., not dismissed or settled.

42 
Headquarters Decisions

43 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS 

ON APPEALS DECIDED IN FY 2001 BY TYPE OF CASE 

Type of Case Decided Dismissed Settled Denied Denied/Reopened Granted

Adverse Action by 

 Agency 485 29 6.0% 10 2.1% 355 73.2% 26 5.4% 65 13.4% 

Termination of 

 Probationers 

41 1 2.4% 1 2.4% 38 92.7% 1 2.4% 0 .0% 

Reduction in Force 44 0 .0% 1 2.3% 23 52.3% 2 4.6% 18 40.9% 

Performance 17 3 17.7% 0 .0% 8 47.1% 2 11.8% 4 23.5% 

Acceptable Level of 

 Competence (WIGI) 5 1 20.0% 0 .0% 2 40.0% 1 20.0% 1 20.0% 

Suitability 15 0 .0% 1 6.7% 11 73.3% 0 .0% 3 20.0% 

CSRS Retirement: 

 Legal 132 5 3.8% 2 1.5% 110 83.3% 8 6.1% 7 5.3% 

CSRS Retirement: 

 Disability 54 2 3.7% 1 1.9% 42 77.8% 2 3.7% 7 13.0% 

CSRS Retirement: 

 Overpayment 15 4 26.7% 0 .0% 7 46.7% 0 .0% 4 26.7% 

FERS Retirement 98 6 6.1% 6 6.1% 66 67.4% 8 8.2% 12 12.2% 

8.1% 14 16.1% 

Individual Right of 

 Action 87 1 1.2% 1 1.2% 64 73.6% 7 

Other 138 7 5.1% 2 1.5% 98 71.0% 15 10.9% 16 11.6% 

Total 1131 59 5.2% 25 2.2% 842 72.9% 72 6.4% 151 13.4%

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL 

DECISIONS ON APPEALS DECIDED IN FY 2001 

Granted (151)

13%

Settled (25)

2%

Denied (824)

73%

Denied but Reopened 

(72)

6%

Dismissed (59)

5%

Total Number of Petitions for Review: 1,131 

44 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL 

DECISIONS ON APPEALS GRANTED IN FY 2001

Initial Decision 

Reversed (27)

18%

Initial Decision 

Affirmed (29)

19%

Other (1)

1%

Case Remanded 

(92)

61%

Agency Action 

Mitigated (2)

1%

Based on 151 Petitions for Review Granted 

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL 

DECISIONS ON APPEALS DENIED 

BUT REOPENED IN FY 2001

Case Remanded (25)

35%

Agency Action Mitigated 

(0)

0%

Other (12)

17%

Initial Decision Affirmed 

(28)

39%

Initial Decision Reversed 

(7)

10%

 

Based on 72 Petitions for Review Denied But Reopened 

45 
PETITIONS FOR REVIEW DECIDED IN FY 2001 BY AGENCY 

Decided Dismissed Settled Denied Denied/Reopened Granted 

OPM 320 15 4.7% 9 2.8% 248 77.5% 17 5.3% 31 9.7%

Postal Service 219 11 5.0% 7 3.2% 149 68.0% 16 7.3% 36 16.4%

Army 78 3 3.9% 0 .0% 59 75.6% 4 5.1% 12 15.4%

Navy 77 2 2.6% 2 2.6% 54 70.1% 6 7.8% 13 16.9%

Justice 66 0 .0% 1 1.5% 50 75.8% 4 6.1% 11 16.7%

Veterans Affairs 64 1 1.6% 1 1.6% 50 78.1% 4 6.3% 8 12.5%

Treasury 52 3 5.8% 2 3.9% 31 59.6% 2 3.9% 14 26.9%

Defense 49 5 10.2% 0 .0% 36 73.5% 7 14.3% 1 2.0%

Air Force 48 1 2.1% 1 2.1% 38 79.2% 2 4.2% 6 12.5%

Interior 24 2 8.3% 0 .0% 17 70.8% 1 4.2% 4 16.7%

Agriculture 21 1 4.8% 0 .0% 15 71.4% 2 9.5% 3 14.3%

Transportation 17 1 5.9% 1 5.9% 10 58.8% 2 11.8% 3 17.7%

Social Security 14 2 14.3% 0 .0% 8 57.1% 1 7.1% 3 21.4%

HHS 13 1 7.7% 0 .0% 9 69.2% 1 7.7% 2 15.4%

GSA 10 3 30.0% 0 .0% 7 70.0% 0 .0% 0 .0%

Labor 7 2 28.6% 0 .0% 5 71.4% 0 .0% 0 .0%

Commerce 6 0 .0% 1 16.7% 5 83.3% 0 .0% 0 .0%

EPA 5 0 .0% 0 .0% 4 80.0% 0 .0% 1 20.0%

FEMA 5 0 .0% 0 .0% 5 100.0% 0 .0% 0 .0%

Nat'l Credit Union Adm 5 1 20.0% 0 .0% 4 80.0% 0 .0% 0 .0%

Energy 4 0 .0% 0 .0% 2 50.0% 0 .0% 2 50.0%

TVA 4 0 .0% 0 .0% 4 100.0% 0 .0% 0 .0%

HUD 3 0 .0% 0 .0% 2 66.7% 1 33.3% 0 .0%

FDIC 2 0 .0% 0 .0% 1 50.0% 0 .0% 1 50.0%

GPO 2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

NARA 2 2 100.0% 0 .0% 0 .0% 0 .0% 0 .0%

Other 2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

SBA 2 2 100.0% 0 .0% 0 .0% 0 .0% 0 .0%

Smithsonian 2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

Soldier's and Airmen's 

Home 2 1 50.0% 0 .0% 1 50.0% 0 .0% 0 .0%

CIA 1 0 .0% 0 .0% 0 .0% 1 100.0% 0 .0%

State 1 0 .0% 0 .0% 0 .0% 1 100.0% 0 .0%

Export Import Bank 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Nat'l Transportation 

Safety Board 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Railroad Retirement Bd 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

US International 

Development Agency 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

TOTAL 1131 59 5.2% 25 2.2% 824 72.9% 72 6.4% 151 13.4%

46 
Merit Systems Studies 

The following are summaries of the findings and recommendations 

from the Board's merit systems studies that were released in FY 2001. 

The report on the Presidential Management Intern Program was 

submitted to the President and Congress in February 2001, while 

certain findings from the Merit Principles Survey were released through 

the Issues of Merit newsletter in preparation for a major report to be 

released in FY 2002. 

Growing Leaders: The Presidential Management Intern Program 

In light of the projected retirement of many of the Government's 

supervisors and managers within the next ten years, it is critical that 

the Federal civil service be able to attract men and women of 

exceptional management potential. In this context, the Board 

conducted a study of the effectiveness of the Presidential Management 

Intern (PMI) Program as a means to attract and develop the Federal 

sector's future managers. 

The PMI Program was established in 1977 as a means of attracting 

master's graduates in public sector management to careers in Federal 

service. PMIs perform a 2-year internship in the excepted service, 

coming in at the GS-9 grade level, and normally being 

promoted to GS-11 after successful completion of their first year. PMIs 

who perform successfully can be given career or career-conditional 

appointments in the competitive service at the end of the 2-year 

program, and typically are, at that time, eligible for promotion to the 

GS-12 level. 

Based upon a review of program operations, surveys of PMIs, and interviews 

with people associated with the development and administration of the 

program, the study concluded that, overall, the PMI program has met with 

considerable success in attracting high quality, high potential individuals to 

the Federal service. Despite the fact that the PMI program nearly 

disappeared following the downsizing of the Office of Personnel Management 

in the early 1990s, OPM's PMI program office has done an excellent job of 

revitalizing the program. 

The surveys revealed that the majority of supervisors and managers who 

have hired PMIs through the program gave their interns' abilities high marks 

and report that they are very likely to use the program again. The track 

record of the interns also points to their success—more PMIs advance into 

47 
management ranks than non-PMI employees. Although some concerns have 

been raised about the high turnover rate of PMIs, turnover data reviewed in 

the study show that PMI turnover is actually about the same as that of other 

comparable Federal employees. As with other comparable employees, PMI 

turnover occurs in the early years of employment. 

Although the PMI program has proven to be an extremely effective method 

for hiring highly qualified individuals for the Federal service, the study found 

a troubling drift from the purpose of the program as outlined in the executive 

order that governs it. Despite its origins as a management potential 

program, and subsequent executive orders that reinforced its management 

focus, the PMI program today is not universally viewed as a vehicle to hire 

and train the Government's future managers. Many agencies use the 

program merely as a mode of entry into the Government's professional and 

administrative ranks rather than as a tool specifically intended to hire future 

public sector managers. 

The report also expresses concern about the fact that OPM has not yet 

demonstrated the validity of the PMI assessment center process, which is a 

fairly resource-intensive aspect of the selection process. Although an 

assessment center has been used to evaluate PMI nominees for a number of 

years, studies to determine the validity and reliability of the process were 

not undertaken until recently. Additionally, there is no objective evidence 

available to demonstrate that the resources the Government expends on the 

assessment center are in proportion to the value it adds to the selection 

process. It is critical that OPM ensure the reliability, validity, efficiency, and 

cost effectiveness of its assessment center process. 

Also of concern is the fact that the training and developmental activities 

provided to PMIs sometimes fall short of the program's objectives. Although 

PMIs are supposed to receive a minimum of 80 hours of training per year, 

survey results reveal that in a significant minority of cases this does not 

occur. While Career Development Groups (CDGs) have been successful asa 

vehicle for networking, the study found them to have been less successful in 

helping PMIs reach other internship goals. 

Based on these findings, the report recommended that OPM direct 

agencies' and its own focus towards the stated purpose of the PMI program 

so that all parties understand its special objectives of identifying future 

managers and providing them developmental opportunities. The report also 

recommended that OPM continue its work to demonstrate the reliability, 

validity, efficiency, and cost-effectiveness of the assessment center process 

for the PMI program. Because the study found that many interns are not 

getting the training and developmental assignments intended by the 

48 
program, the report recommended that OPM work with agencies to improve 

PMI training, and either strengthen the Career Development Group 

component of the program or allow the groups to focus solely on 

networking. And finally, the report recommended that OPM ensure that 

prospective candidates for the PMI program fully understand the level of 

work they are likely to be assigned during and after the internships, and the 

extent to which they are responsible for their own advancement. 

Merit Principles Survey 2000 (Findings released through Issues of Merit) 

The Board periodically conducts surveys to obtain the views of Federal 

employees on a number of workplace issues such as working conditions, job 

satisfaction, and the quality of coworkers and supervisors. The Merit 

Principles Survey 2000 was the sixth in this series since the Board's creation 

in 1979. A number of the findings from this survey were released during FY 

2001 in the newsletter, Issues of Merit. Among the findings addressed in this 

manner were the following: 

Performance appraisal. The results of the survey, which collected the views 

of thousands of Federal employees, indicated that only one out of every five 

believes that the performance appraisal system helped them do a better job. 

Moreover, only 20 percent think that the system helped increase job-related 

communications between them and their supervisors. Similarly, research 

indicates that there is considerable dissatisfaction with performance 

appraisal systems in both the private and the Federal sectors. For example, 

a 1995 study found that more than half the private companies surveyed 

were unhappy with their appraisal systems. The performance appraisal 

process, however, is only one aspect of performance management. It is 

equally important for Federal agencies to define what they are supposed to 

accomplish and understand what each worker contributes to those 

objectives; ensure that employees and customers buy into the organization's 

goals; provide frequent feedback on results; and select and develop good 

managers who can make the appraisal system work. 

Unfortunately, the results from the Merit Principles Survey 2000 also 

suggest that Federal employees believe that feedback is not used as 

effectively as it might be. Over half of the nearly 7,000 employees who 

responded to the survey said that they receive informal recognition from 

their supervisors, but only 37 percent said that they aresatisfied with the 

recognition they received. Only 33 percent said that recognition and 

rewards in their work unit were based on merit. Survey respondents also 

cited lack of recognition among the top five most important reasons to look 

for another job in the coming year. 

49 
Federal employees and GPRA. The success of the Government 

Performance and Results Act (GPRA) depends on employees at all levels of 

an organization understanding how their work contributes to meeting the 

agency's overall goals. Agencies must foster this understanding by setting 

employee performance expectations that are clearly linked to the agency's 

strategic plan and performance goals. However, in responding to the Merit 

Principles Survey 2000, only 55 percent of employees reported that their 

performance standards were clearly linked to their organizations' goals, and 

only 31 percent were even familiar with GPRA. On the other hand, when 

asked to rate the extent to which they believe their work contributes to their 

agencies' mission, survey respondents gave an average rating of 7.69 on a 

10-point scale (with 10 being "contributing to a great extent"). This suggests 

that while some Federal workers do appreciate how their work fits into 

organizational goals, agencies should strengthen this connection. 

Federal workers rate themselves. According to the survey results, Federal 

employees believe that the quality of the work performed in their units is 

outstanding or above average. Some 67 percent of respondents (the same 

percentage as in the 1996 survey) responded that way. The challenge is to 

maintain a high performance level as large numbers of employees retire and 

less experienced workers replace them. 

Actions against whistleblowers. In spite of the many changes in agency 

leadership, laws and regulations, and workforce composition—all of which 

contribute to turmoil in the workplace—Federal workers' perceptions about 

retaliation because of whistleblowing did not change during the 1990s. The 

Merit Principles Survey 2000 asked respondents whether they had 

experienced retaliation for a number of protected activities (e.g., whistleblowing, exercising a right of appeal, reporting sexual harassment). In the 

1992, 1996 and 2000 surveys, the percentage of employees who had 

experienced retaliation remained low. The range in 2000 was from 1 percent 

(those who reported sexual harassment) to 9 percent (those who exercised 

an appeal, complaint, or grievance right). 

Job satisfaction. Federal employee job satisfaction declined slightly, 

according to data collected for the Merit Principles Survey 2000. Although 

the percentage of employees who were generally satisfied with their jobs 

decreased only from 71 to 67 percent between 1996 and 2000, several 

areas related to job satisfaction also showed a similar decline. This included 

the declines in the percentages of employees who said that they would 

recommend the Government as a place to work, that the work they do is 

meaningful, and that there is a spirit of cooperation in their work units. 

Reasons retirement eligibles leave. Effective workforce planning includes 

knowing how many retirement-eligible employees actually intend to retire. 

50 
In the Merit Principles Survey 2000, participants were asked about their 

retirement intentions. The most frequently cited reason in employees' 

decisions to retire was non-work interests. Other important reasons were 

excessive job stress and a desire to work on one's own. 

Issues of Merit 

The Board published four editions of its newsletter, Issues of Merit, in FY 

2001. Among the other topics addressed were: 

The Federal hiring process. A series of focus groups were conducted in 

Baltimore, Philadelphia, Chicago, and New York, where MSPB staff members 

discussed with managers and senior executives their views about Federal 

hiring tools and hiring processes. These managers generally agreed that 

they should be involved in recruitment long before the final selection stage is 

reached. They also expressed dissatisfaction with the assessment tools used 

to identify candidates for referral, noting that too many marginally qualified 

or even unqualified individuals are referred for employment. 

Presidential management intern demographics. A review of the Presidential 

Management Intern Program showed that women are very well represented 

in this selective program for identifying and developing managerial talent. 

The percentage of women hired yearly into the program has been as high as 

68 percent and never below 47 percent. This is not because the program 

favors women, but rather reflects female representation among master's 

graduates, particularly in the field of public administration. Similarly, 

minority groups are well represented in the program: 23 percent of PMI 

hires in 1999 were minority candidates. 

Poor performers. Focusing on finding ways to fire more employees misses 

the important connection between how the Government hires and the need 

to fire. Poor performers can, in a sense, be created when agencies use 

selection practices that do a poor job of matching job requirements to the 

qualifications of the applicant, or when recruiting efforts are inadequate, or 

when management is unwilling to devote the time and resources that are 

necessary to find and evaluate the best candidates. In addition, 

compensation, training opportunities, and performance management can all 

play a role in whether or not good people are attracted to and hired by 

Federal agencies. To develop a real understanding of the issue of poor 

performance, it must be viewed within this larger context. 

Cost of the merit promotion process. The Board estimated that merit 

promotion costs the Government about $238 million per year, including 

conducting job analyses, developing crediting plans, rating job applications, 

51 
and interviewing applicants. 

Probationary period. The probationary period is an important phase of the 

assessment process. It becomes particularly important during periods of 

full employment, when selecting officials may have fewer candidates from 

whom to choose and, consequently, do not believe that it is practical to 

assess job applicants much beyond the point of establishing 

basicqualifications. When selections are made in the absence of rigorous 

assessment, using the probationary period wisely becomes even more 

important. This tool stands as a final protection against poor selections 

made under difficult hiring conditions. 

Source of Federal job selectees. Information obtained for the Board's study 

of the Federal merit promotion process confirmed that many selections were 

of individuals who already worked for the selecting official's organization. 

The next largest source of appointees was not candidates from other 

agencies, but applicants from outside the Government. The study data also 

indicated that during the preceding two years, some 54 percent of the time, 

selecting officials had already identified a current employee whom they were 

likely to promote into the vacancy. 

Use of retention allowances. The Board examined OPM statistics on what 

kinds of jobs were held by employees who received retention allowances. In 

2000, the Federal Government paid over 3,000 employees an average of 

more than $8,000 each to remain on the job. Six of the top 10 occupations 

whose workers received such bonuses were in medical and health care 

fields. Others were computer specialists, police officers, and financial 

institution examiners. 

Special Issues of Merit. To coincide with the beginning of a new 

presidential administration, the Board published a special edition of Issues of 

Merit which highlighted excerpts from—and updates of—previous newsletter 

articles that best captured the significant human resources issues examined 

by the Board during the preceding five years. That edition covered human 

resources flexibilities available to agencies; the need to continue to monitor 

and protect the merit system principles; the need for better employee 

selection tools; handling poor performers; the public service orientation of 

Federal employees; and the fact that the Government's "Rule of Three" may 

be preventing, rather than assuring, consideration of the best available 

candidates. 

52 
FY 2001 Financial Summary 

(Dollars in thousands) 

FINANCIAL SOURCES 

Appropriations $29,372

Civil Service Retirement and Disability Trust Fund 2,430

Reimbursements 135

Total Revenue $31,937

OBLIGATIONS INCURRED 

Personnel Compensation $19,593

Personnel Benefits $3,740

Benefits, Former Employees 0

Travel of Persons 499

Transportation of Things 32

Rental Payments 2,566

Communications, Utilities, and Miscellaneous Charges 577

Printing and Reproduction 99

Other Services 3,841

Supplies and Materials 322

Equipment 588

Total Obligations Incurred $31,857

Obligated Balance $80

53 
For Additional 

Information 

The MSPB World Wide Web site contains information ab

the Board and its functions, where to file an appeal, an

how the Board's adjudicatory process works.

At the Web site, you can get Board regulations, appeal

and PFR forms (which can be either printed or filled in 

using a PC), important telephone and FAX numbers, 

and e-mail addresses for the headquarters, regional, 

and field offices.

Complete decisions from July 1, 1994, are available 

for downloading. The Board is in the process of adding 

significant precedential decisions issued from 1979 to 

1994 to the decisions database. The Web site also 

provides weekly Case Summaries—an easy way to 

keep up with changes in Board case 

law.

From the Web site, you can download recent

Board reports and special studies on civil service 

issues.

You can also subscribe to one of two list servers 

(listservs) on the Web site—one to receive Board 

decisions as they are posted, and the other to receive 

notification when a merit systems studies report is 

issued.

The Board's Web site is 

http://www.mspb.gov. 

The Board's toll-free telephone number 

is 1-800-209-8960. 

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