ANNUAL REPORT 

FISCAL YEAR 

1987 

UNITED STATES 

MERIT SYSTEMS PROTECTION BOARD 

A REPORT TO THE PRESIDENT AND THE CONGRESS OF THE UNITED STATES BY THE U.S. MERIT SYSTEMS 

PROTECTION BOARD 
THE CHAIRMAN 

1120 Vermont Avenue, N.W. 

Washington, D.C. 20419 

Sirs: 

In accordance with Section 202 (a) of the Civil Service Reform Act 

of 1978 (5 U.S.C. § 1209 (b)), I am pleased and honored to submit the Ninth 

Annual Report of the U.S. Merit Systems Protection Board, covering the activities of the Board 

during Fiscal Year 1987. 

This is the first Board Annual Report to display the recently revised seal, which now 

incorporates the date "1883." That date marks the enactment of the Pendleton Act, which established the 

merit system and created the Board's predecessor agency, the Civil Service Commission. The addition of 

this historic date is an important reminder that the Board's guardianship of the merit system serves a long 

and noble tradition in the annals of Government service. 

The President of the United States The President of the Senate 

The Speaker of the House of Representatives 

Washington, DC 
TABLE OF CONTENTS 

Page 

Board Facts and Highlights .................................................................................................1 

Mission ......................................................................................................................................1 

Board Members............................................................................. 2 

Board Organization ....................................................................... 3 

Highlights of Fiscal Year 1987 Activities........................................... 5 

Appellate Functions of the Board .................................................... 7 

Initial Appeals............................................................................... 7 

Addendum Cases ........................................................................ 10 

Petitions for Review..................................................................... 10 

Original Jurisdiction Function of the Board ..................................... 12 

Special Panel .............................................................................. 14 

Litigation.................................................................................... 14 

Focusing on the Future - Improvement Objectives ......................... 15 

To Ensure the Quality of Decisions and 

the Adjudicatory Process ............................................................. 15 

To Enhance the Merit Systems Studies 

and Regulation Review Functions .................................................. 19 

To Continue to Improve Management 

Efficiency and Effectiveness.......................................................... 20 

To Improve the Effectiveness of 

Outreach Activities ..................................................................... 24 

Finances and Human Resources ................................................... 27 

Financial Statement..................................................................... 27 

Human Resources ...................................................................... 28 

Regional Board Officials ............................................................... 30 

Appendix A - Significant Board Decisions - 

Appellate Jurisdiction Cases ......................................................... 31 

Appendix B- Significant Board Decisions - 

Original Jurisdiction Cases............................................................ 38 

Appendix C - Special Panel Decision .............................................. 40 

Appendix D - Significant Litigation ................................................ 41 

Appendix E - Special Studies ....................................................... 43 
BOARD FACTS AND HIGHLIGHTS 

MISSION 

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency, charged by 

Congress with protecting the integrity of Federal merit systems against prohibited personnel 

practices, ensuring adequate protection for employees against abuses by agency management, 

and requiring Executive branch agencies to make employment decisions based on individual 

merit. The Board has a statutory mandate to adjudicate appeals from personnel actions for the 

nation's largest employer. It has worldwide jurisdiction, wherever Federal civil servants are found. 

Additionally, under the Hatch Political Activities Act, it exercises jurisdiction over state and local 

government employees in Federally-funded positions. 

The Board accomplishes its mission by: 

• Hearing and deciding employee appeals from agency personnel actions; 

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

abuses of the merit systems; 

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

branch to determine whether they are free of prohibited personnel practices; and 

• Reviewing regulations issued by the Office of Personnel Management to determine

whether implementation would result in the commission of a prohibited personnel practice. 

The Board was established on January 1, 1979, by Reorganization Plan No. 2 of 1978, and codified 

by the Civil Service Reform Act of 1978 (CSRA). The Act restructured the Federal Government's 

personnel administration by distributing functions performed by the Civil Service Commission to 

four newly-created independent agencies. The Merit Systems Protection Board (MSPB) assumed 

the appeals functions of the Civil Service Commission, and was given the new responsibilities to 

perform merit systems studies and to review the significant actions of OPM. The other agencies 

established by the CSRA are the Office of Personnel Management (OPM), which manages the Federal 

workforce; the Federal Labor Relations Authority (FLRA), which oversees labor-management 

relations in the Federal establishment; and the Office of Special Counsel (OSC), which investigates 

prohibited personnel practices, prosecutes violators of civil service rules and regulations, and 

enforces the Hatch Political Activities Act. 

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

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

President, confirmed by the Senate, and serve overlapping, non-renewable seven-year terms. 
BOARD MEMBERS 

Chairman 

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

nomination by President Reagan and confirmation by the Senate. At the time of 

his appointment, Mr. Levinson was General Counsel of the U.S. Consumer Product 

Safety Commission, a position he had held since March 1985. Previously he served for 

two years as Deputy General Counsel of the Office of Personnel Management. Prior 

to joining OPM, Mr. Levinson was a partner in the Washington, D.C. law firm of 

McGuiness & Williams. 

Vice Chairman 

MARIA L. JOHNSON was nominated to the Board by President Reagan on March 

18, 1983. She was confirmed by the Senate on May 6, 1983, and was designated 

Vice Chairman on September 19, 1983. From March 1, 1986 to August 15, 1986, Ms. 

Johnson served as the Board's Acting Chairman. At the time of her appointment, Ms. 

Johnson was a commercial loan officer with the Security National Bank in 

Anchorage, Alaska. From 1978 to 1981, she served as an associate with the law firm of 

Lambert, Griffin &McGovern in Washington, D.C. 

Member 

DENNIS M. DEVANEY was nominated by President Reagan to be a member of 

the Board on August 4, 1982 and was confirmed by the Senate on August 20, 1982. At 

the time of his appointment, Mr. Devaney was in private law practice in 

Washington, D.C. with the firm of Tighe, Curhan, and Piliero. From 1977 to 1979, 

he served as Counsel for the Food Marketing Institute, and from 1975 to 1977 he 

was Assistant General Counsel for the U.S. Brewers Association. 
BOARD ORGANIZATION 

The Chairman, by statute, is the chief executive and administrative officer of the Board. 

The Executive Director has authority, as delegated by the Chairman, for management of the 

Board, including the authority to make final decisions in the areas of personnel management, fiscal 

management, document security, procurement and contracts, and general administrative support 

services. The Executive Director oversees program planning and implementation, including 

supervision of the Board's Regional Offices. 

The Deputy Executive Director for Regional Operations provides administrative guidance to the 

Board's Regional Offices, reviews the quality of initial decisions issued by administrative judges in the 

Regional Offices, and ensures that Board policies and procedures are implemented at the 

regional level. DEDRO also assists the Executive Director in carrying out general management 

responsibilities. 

The MSPB Regional Offices are located in eleven major metropolitan areas throughout the United 

States:Atlanta, Boston, Chicago, Dallas, Denver, New York, Philadelphia, St. Louis, San Francisco, 

Seattle and Washington, D.C. These offices receive, process, and adjudicate the initial appeals filed 

with the Board, and have the primary function of issuing fair, timely, and well-reasoned decisions on 

all appeals. Almost one-half of the Board's workforce is located in the Regional Offices. 

The Office of the Inspector General is an independent entity which conducts audits, investigations, 

and internal control evaluations in compliance with the requirements of the Office of Management and 

Budget and the U.S. General Accounting Office. The Inspector General evaluates the programs and 

operations of the Board in order to promote economy and efficiency, to prevent and detect fraud 

and abuse, and to advise the Chairman and Executive Director of any problems and deficiencies 

detected. 

The Office of the General Counsel is legal counsel to the Board. The office provides advice to the 

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

represents the Board in litigation, prepares proposed enforcement decisions and orders, reviews 

OPM's regulations, and drafts proposed final decisions for the Board in original jurisdiction cases. 

The office is also responsible for conducting the agency's ethics program. 

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

decisions issued by administrative judges in the Regional Offices. The office receives and analyzes 

the petitions, researches applicable laws, rules and precedents, and submits proposed opinions to 

the Board members for their final adjudication. It also processes interlocutory appeals on matters still 

pending before the Regional Offices, makes recommendations to the Board on motions filed during 

the review process, makes recommendations on reopening appeals on the Board's own motion, 

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

The Office of Administrative Law Judge hears cases governed by the Administrative Procedures 

Act and other original jurisdiction cases assigned by the Board. This office also renders initial decisions 

in appellate jurisdiction cases as assigned by the Board, acts on discovery motions, and issues 

subpoenas. 

The Office of Legislative Counsel manages legislative policy, Congressional relations, and public 

affairs functions for the Board, including the drafting and coordination of prepared testimony, 

responses to public and Congressional inquiries, and analyses of proposed legislation. The office also 

conducts the Board's outreach program and assists in the preparation and distribution of Board 

publications. 

The Office of Policy and Evaluation plans and conducts studies of the civil service and other merit 

systems and produces an annual review and report on the significant actions of the Office of Personnel 

Management, as required by law. The office also conducts studies focusing on the internal operations 

of the Board, and plans and coordinates improvements to the overall management of the Board. 
The Office of the Clerk of the Board performs the ministerial functions of the Board that 

facilitate timely adjudication, including receiving and processing petitions for review, ruling on 

certain procedural matters, and distributing the Board's Opinions and Orders. The Clerk is 

also responsible for the Board's records, correspondence, and reports management 

programs. This office certifies official records, maintains the Board's library, and provides 

initial responses to Freedom of Information and Privacy Act requests. 

The Office of Administration directs and oversees the administrative operations of the 

Board, and is made up of the following four divisions: The Comptroller Division administers 

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

functions of the Board. The Personnel Division manages personnel programs and assists 

managers, employees, and applicants for employment. It administers the staffing, 

classification, employee relations, performance management, payroll, personnel security, 

and training functions for the Board. The Equal Employment Division implements the Board's 

equal employment opportunity programs, including developing annual EEO action plans 

and procedures for processing discrimination complaints. It furnishes advice and assistance 

on affirmative action initiatives to the Board's offices. The Information Resources 

Management Division develops and maintains the Board's automated information systems 

in order to help the Board manage its caseload efficiently and carry out its administrative 

responsibilities. 

U.S. MERIT SYSTEMS PROTECTION BOARD 
HIGHLIGHTS OF FISCAL YEAR 1987 ACTIVITIES 

In Fiscal Year 1987 the Board's Regional Offices continued to improve an already impressive 

record of case processing timeliness. Decisions on initial appeals from Federal employees were isssued 

within the Board's established 120-day time standard in 99.8 percent of all cases. The Board's 

administrative judges issued just over 6,500 decisions on initial appeals. This figure has remained relatively constant from Fiscal Year 1985 through the past fiscal year. Voluntary settlements among the 

parties to an appeal also continued to increase, rising to 36 percent of the initial appeals which were 

not dismissed. 

At Headquarters, the Board issued decisions on just over 1,600 petitions for review, virtually the 

same number as in Fiscal Year 1986. The Board also decided 13 cases arising under its original 

jurisdiction, a slight decline from the number of decisions in the previous fiscal year. Most of the 

original jurisdiction cases were actions brought by the Office of the Special Counsel, seeking 

disciplinary action against Federal employees alleged to have committed prohibited personnel practices and prosecuting violations of the Hatch Act. 

For the Board, Fiscal Year 1987 was a year of innovation, as well as of achievement. Beginning with 

the Management Planning Conference held in October 1986, specific "Improvement Objectives" 

were developed to assist the Board in maximizing use of its resources to accomplish its mission with a 

high degree of efficiency and effectiveness. These objectives were: 

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

• To enhance the merit systems studies and regulation review functions; 

• To continue to improve management efficiency and effectiveness; and 

• To improve the effectiveness of outreach activities. 

As part of the development of a viable strategic plan, each office director in Headquarters and the 

Regional Offices was required to establish specific action plans in support of one or more of the 

improvementobjectives. Periodic reviews are being conducted to monitor and assess each office's 

progress in fulfilling its action plan objectives and meeting its milestones. 

In the area of case adjudication, the Board has continued to emphasize the need to ensure 

well-reasoned decisions both in the Regional Offices and at Headquarters. The quality review program 

of Regional Office initial decisions has been strengthened, uniform jurisprudence has been 

promoted among the regions, and training of administrative judges has been conducted. At 

Headquarters the Board has concentrated on issuing precedential decisions in cases involving 

"major issues," so that these decisions may be utilized in the adjudication of other cases involving 

similar issues. In addition, fewer short form Orders summarily affirming Regional Office initial decisions 

have been issued, with a corresponding increase in Board Opinions. 

The use of alternative means of dispute resolution to achieve settlement between parties has also 

been emphasized. The Board's administrative judges have attended the National Judicial 

College and other training programs to improve their skills in this area, and the rate of settlements 

reached in cases brought to the Board has continued to increase. The greater use of settlement 

procedures is expected to result in significant cost savings, especially at the regional level, without 

impinging on the rights of the parties. 

The allocation of additional resources to the office responsible for merit systems studies permitted 

greater emphasis on the Board's statutory studies function. As a result, work was completed on 

several studies dealing with important Federal personnel issues. A number of these studies were 

issued in Fiscal Year 1987 and the others are planned for release in Fiscal Year 1988. This office, which 

also conducts internal management studies, was retitled the Office of Policy and Evaluation in the 

realignment of Board offices. 

A commitment to realign the Board's Headquarters offices and the jurisdictions of its Regional 

Offices also developed from the Management Planning Conference. After extensive study to 

determine the alignment of functions which would best contribute to greater management efficiency 

and effectiveness, the new organization plan was placed in effect April 1, 1987. The realignment 
of the geographic jurisdictions of the Regional Offices was aimed at balancing workload with staff. 

At Headquarters, the Executive Director was provided with a deputy to assist in carrying out general 

management responsibilities, and several offices which had previously reported directly to the 

Executive Director were combined, resulting in a more streamlined organizational structure. The 

internal audit function was strengthened by making it an independent office reporting to the Executive Director. 

Other management improvement activities have included the continued expansion of the Board's 

automated systems, the establishment of an automated assignment and correspondence tracking 

system, the establishment of an automated reports control system, and the development of new 

and improved written procedures. 

The Board has emphasized outreach activities in order to promote a greater understanding of the 

Board's practices and procedures, and of important issues in Federal personnel law, among the 

constituencies which deal with the Board. This emphasis is reflected in the number of appearances 

made by Board members, senior Headquarters staff, and Regional Office directors and 

administrative judges at meetings, conferences, and training programs. The Board's outreach 

activities have also included, for the first time, contact with state and local government personnel 

boards on matters of common interest and concern. 

Chief Administrative Law Judge, Edward 

J. Reidy 
APPELLATE FUNCTIONS OF THE BOARD 

INITIAL APPEALS 

Most Federal employees and applicants for employment are entitled to appeal certain personnel 

actions taken by Federal agencies. Appealable matters include adverse actions for misconduct, 

performance-based removals or downgrades, employment suitability and retirement determinations, reductions-in-force, denials of within-grade increases, and denial of restoration to duty or 

reemployment rights. Appeals must be filed in writing, within 20 days of the personnel action, with the 

Regional Office having geographic jurisdiction. 

After the appeal has been docketed and entered into the case tracking system, the Regional 

Office issues an order acknowledging receipt of the appeal and raising any questions of timeliness 

or jurisdiction. The appeal is then assigned to an administrative judge for review. By Board order, the 

agency is required to provide its evidentiary file to the appellant and the administrative judge. The 

appellant and the agency then have the opportunity to present additional information for the 

administrative judge's consideration. 

The appellant may also request a hearing. If a hearing is held, each party has the opportunity to call 

and cross-examine witnesses, present evidence, and make arguments to the administrative judge. 

Hearings are open to the public and on the record, with copies of the record available to the 

parties. 

Based on the Board's established policy, the administrative judge is required to issue an initial 

decision within 120 days from the date the appeal was filed. In Fiscal Year 1987, 99.8 percent of all 

initial appeals were decided within 120 days. The Regional Offices averaged 75 days to issue 

decisions. 

In Fiscal Year 1987 the Board's Regional Offices decided a total of 7,410 cases, of which 6,512 

were initial appeals and 898 were addendum cases, i.e., attorney fees, remands, and compliance (or 

enforcement). Settlements increased to 1,448 or 36 percent of those initial appeals not dismissed for 

lack of jurisdiction or timeliness and closed during the fiscal year. 

The following table shows the processing times of the initial appeals decided in the Regional 

Offices during Fiscal Year 1987. 

CASE PROCESSING TIMES IN REGIONAL OFFICES 

DECISION TIMES Number of Cases Percent of Cases Percent Total

(DAYS) 

0 - 30 452 6.9 6.9 

31 - 60 1,803 27.7 34.6 

61 - 90 1,809 27.8 62.4 

91 -120 2,433 37.4 99.8 

120 + 15 .2 100.0 

TOTAL 6,512 
Fifty-one percent of the initial appeals were adverse action cases. The remaining appeals included 

retirement-related decisions, terminations of probationary employees, performance actions, 

reductions-in-force, and other appealable actions. The following chart shows the breakdown of initial 

appeals by the type of action appealed. 

INITIAL APPEALS BY TYPE OF ACTION 

TOTAL NUMBER OF INITIAL APPEALS - 6,512 

Hearings were held in 24 percent of all initial appeals. Fifty-five percent of appellants were 

represented by an attorney, union representative, or other person. Of the initial appeals which were 

adjudicated, 1,941 or 76 percent affirmed the agency action. Decisions on the remaining appeals 

which were adjudicated included reversals, which overturned the agency action, and mitigations, 

which reduced or modified the penalty imposed by the agency. The following chart shows the 

breakdown by disposition of all appeals which were not dismissed or settled. 

DISPOSITION OF INITIAL APPEALS 

TOTAL NUMBER OF CASES - 2,540 
DISPOSITION OF INITIAL APPEALS (CASES NOT DISMISSED) BY AGENCY 

Agency 

Settled 

# %

Affirmed 

# %

Reversed 

# %

Mitigated/ 

Modified 

# %

Other 

# %

Total 

100%** 

#

OPM* 75 ( 7) 774 (69) 241 (22) 16 (1) 11 (1) 1,117

Postal Service 435 (56) 235 (30) 67 (9) 32 (4) 2 (—) 771

Navy 184 (41) 221 (49) 32 (7) 14 (3) 451

Army 168 (47) 145 (41) 37 (10) 6 (2) 356

Air Force 106 (41) 129 (49) 16 (6) 9 (3) 1 (—) 261

Veterans 

Administration 116 (56) 70 (34) 13 (6) 7 (3) 206

Justice 64 (51) 42 (33) 11 (9) 9 (7) 126

Defense 36 (37) 50 (51) 9 (9) 3 (3) 98

Treasury 59 (63) 27 (29) 4 (4) 3 (3) 93

HHS 29 (33) 42 (48) 13 (15) 3 (3) 87

Transportation 32 (52) 24 (39) 3 (5) 2 (3) 1 (2) 62

Agriculture 26 (50) 19 (37) 4 (8) 3 (6) 52

Interior 28 (56) 17 (34) 5 (10) 50

GSA 18 (40) 23 (51) 4 (9) 45

Labor 21 (62) 10 (29) 3 (9) 34

Tenn. Valley 

Authority 8 (26) 23 (74) 31

Commerce 7 (27) 17 (65) 2 (8) 26

Energy 3 (17) 15 (83) 18

Comm. on Civil Rights 15 (100) 15

SBA 4 (40) 2 (20) 3 (30 1 (10) 10

EEOC 2 (22) 5 (56) 2 (22) 9

HUD 2 (25) 5 (63) 1 (13) 8

Education 7 (100) 7

Totals — Remaining 

Agencies 

25 (45) 24 (44) 6 (11) 55

GRAND TOTAL 1,448 (36) 1,941 (49)

474

(12)

110

(3)

15

(—)

3,988

*Office of Personnel Management is "Agency" in retirement cases. 

**May not total 100% because of rounding. 

On August 18, 1987, President Reagan signed into law Public Law 100-90, which extends MSPB appeal rights 

to additional U.S. Postal Service (USPS) supervisors and managers who did not previously have recourse to 

the Board. USPS estimates that the new law will increase the number of its employees eligible to appeal to 

the Board by 35,000. 
ADDENDUM CASES 

In addition to the decisions on initial appeals issued in Fiscal Year 1987, the Regional 

Offices issued decisions in 898 addendum cases. These included requests for 

attorneyfees, enforcement cases alleging that there has not been full compliance with a 

decision of the Board or a Regional Office, and cases remanded to the Regional Offices. 

The following table shows the number of addendum cases by type. 

ADDENDUM CASES 

CATEGORY OF APPEAL FY 1987 

Attorney Fees 379 

Compliance (Enforcement) 405 

Remands 114 

Total 898 

PETITIONS FOR REVIEW 

The Board may grant a petition for review when it is established that the initial decision of 

the administrative judge was based on an erroneous interpretation of statute or regulation, 

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

available when the record was closed. Petitions for review may be filed with the Office 

of the Clerk in Board Headquarters by either party, or, under certain circumstances, by the 

Office of Personnel Management or the Office of Special Counsel as an intervenor. The 

Board also has the discretion to reopen and reconsider an initial decision on its own 

motion. 

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

Further appeal may then be available in the United States Court of Appeals for the Federal 

Circuit or, in cases involving allegations of certain types of discrimination, with a U.S. 

District Court or the Equal Employment Opportunity Commission. The Director of OPMmay 

intervene or petition the full Board for reconsideration of a final decision, and may also 

seek judicial reviews of Board decisions that have a substantial impact on a civil service 

law, rule, regulation, or policy. 

The Board completed action on 1,619 petitions for review in Fiscal Year 1987, of 

which 1,388 were filed to review initial decisions and the remaining 231 were addendum 

cases (attorney fees, enforcement and remands). Ninety-one percent of the decisions by 

the Board left the Regional Office initial decision unchanged (1,262 of 1,388). During Fiscal 

Year 1987, 94 percent of final Board decisions reviewed by the United States Court of 

Appeals for the Federal Circuit were unchanged. 

The following flow chart demonstrates the various steps in the processing of both initial 

appeals and petitions for review. 

(See Appendix A for summaries of significant Board decisions issued on appeals during 

Fiscal Year 1987.) 
STEPS IN PROCESSING INITIAL APPEALS AND PETITIONS FOR REVIEW 

ACTION TIME FRAME 

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

MSPB REGIONAL OFFICE

Appeal received

Appeal acknowledged

Appeal entered in Case Tracking System Case file requested from agency

Appeal assigned to administrative judge

(If appropriate, show cause order issued, re: 

jurisdiction or timeliness)

1-3 days from receipt of appeal

Agency response and case file received

Discovery begins

Prehearing conference scheduled

Notice of hearing issued

(If show cause order issued, response received)

10-25 days from receipt 

of appeal 

Prehearing motions filed and rulings issued

Attempts to achieve settlement (various methods)

Discovery completed

Prehearing conference held (More than one may be held to facilitate settlement) 

Witnesses identified

If no hearing, close of record set

10-60 days from receipt 

of appeal 

Hearing held 

Record closed

60-75 days fromreceipt of 

appeal 

Initial Decision issued Within 120 days from receipt of 

appeal 

Filing of Petition for Review (PFR) by Appellant or 

Agency (or OSC or OPM as intervenor) Within 35 days of date of Initial Decision

BOARD HEADQUARTERS

PFR received

PFR acknowledged

PFR entered in Case Tracking System

Case file requested from Regional Office

(If appropriate, show cause order issued 

re: jurisdiction or timeliness)

1-3 days from receipt of PFR

Response to PFR received or

Cross-PFR received 

Case file received

(If show cause order issued, response received)

Within 25 days of date of service of PFR

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

If Extension of Time request received and 

granted Additional time specified in Order granting EOTT

Written Decision issued (Board time standard for issuance of Final 

Decisions is 110 days)

Filing of appeal with U.S. Court of Appeals for the 

Federal Circuit (or in discrimination cases, with the 

appropriate U.S. District Court or EEOC)

Within 30 days of the party's receipt of Board 

Final Decision
ORIGINAL JURISDICTION FUNCTION OF THE BOARD 

The Board has original jurisdiction over certain matters where no formal action has been taken within an 

agency. These cases include: 

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

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

who are alleged to have committed prohibited personnel practices, or to have violated certain civil service laws, 

rules or regulations; 

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

practices; 

• Certain proposed disciplinary actions brought by agencies against Administrative Law Judges; 

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

regulations by an agency; and 

• Informal hearings in cases involving proposed removals from the Senior Executive Service. 

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

against whom Hatch Act, other disciplinary action, or Administrative Law Judge disciplinary action complaints are 

filed have 30 days to respond and are entitled to a hearing. These cases are assigned to the Office of the 

Administrative Law Judge, who issues a recommended decision to the Board for final decision. In SES performance 

removal cases, the Administrative Law Judge holds an informal hearing, but there is no action by the Board. Special 

Counsel stay requests and requests for regulation review are decided by the Board. Appeals from most original 

jurisdiction cases are filed with the United States Courts of Appeals.

Two other types of cases, although technically within the Board's appellate jurisdiction, are processed originally at 

Board Headquarters (rather than in a Regional Office). These are petitions to review an arbitrator's award and 

appeals from the Board's own employees. Decisions in arbitration cases are issued by the Board. In the case of an 

appeal from an MSPB employee, the Administrative Law Judge hears the case and issues the initial decision. 

Unless a PFR is filed, the decision of the ALJ becomes the final decision. 

Addendum cases (attorney fees, compliance, and remands) arising out of Board decisions in original jurisdiction 

cases are also included in the Board's original jurisdiction caseload. 

During Fiscal Year 1987, the Board issued decisions in 13 original jurisdiction cases. Of these, four were actions 

filed by the Special Counsel alleging violation of the Hatch Act, four were other Special Counsel disciplinary 

actions, and one was a Special Counsel stay request. (The stay request took effect by operation of law, i.e., without 

action by the Board.) Three cases involved proposed disciplinary actions against Administrative Law Judges and 

one was a regulation review. In addition to these 13 cases, the Board issued decisions in 3 attorney fee cases arising 

out of original jurisdiction decisions and in 3 cases remanded by the courts. In one original jurisdiction compliance 

case, the initial decision of the Administrative Law Judge became final without Board action. The Administrative 

Law Judge also held informal hearings in two cases involving removal from the Senior Executive Service. The Board 

decided seven cases involving review of arbitrators' awards. 

The following table shows the breakdown of original jurisdiction cases by type of action and provides information on 

the disposition of these cases. 

(See Appendix B for summaries of significant Board decisions issued in original jurisdiction cases during Fiscal Year 1987.) 
NUMBER AND DISPOSITION OF ORIGINAL JURISDICTION CASES 

FY 1987 

TYPE CASE NO. OF 

CASES 

DISPOSITION 

Special Counsel — 4* Demotion ordered in 2 cases. Suspension 

Disciplinary Actions 

(other than Hatch Act) 

ordered in 1 case. Settlement in 1 case. 

Hatch Act Violations 4** 

Violation found in all 4 cases. Removal ordered in 2 cases. Suspension ordered in 1 

case. Settlement in 1 case. 

Special Counsel — Corrective Actions 0 

Special Counsel — Stay Requests 1 Stay went into effect by operation of law. 

Actions against Administrative Law Judges 3 

Upheld agency action in 1 case. Dismissed 1 case. No jurisdiction in 1 case. 

Review of Regulations 1 Denied request to review. 

TOTAL 13 

* In addition, 3 decisions were issued in OSC disciplinary action cases remanded to the Board by the courts. 

Revised penalty in 1 case. Dismissed 2 cases.** 

 **In one of these cases, a second decision was issued ordering withholding of Federal funds from the employing 

agency for failure to remove the employee as ordered by the Board. 

The Board issued decisions in three attorney fee cases arising out of original jurisdiction cases. The initial 

decision of the ALJ became final in one original jurisdiction compliance case. The ALJ held hearings in two 

SES removal cases. 

The Board also decided seven arbitration cases. No decisions on appeals from MSPB employees were issued 

during FY 1987. 
SPECIAL PANEL 

The Special Panel is a separate entity whose sole purpose is to resolve inconsistencies created 

when civil service law and discrimination issues intersect. Established by the Civil Service Reform Act 

of 1978 to resolve disputes between the Merit Systems Protection Board and the Equal Employment 

Opportunity Commission, the Special Panel consists of one Board Member designated by the MSPB 

Chairman, one EEOC Commissioner designated by the EEOC Chairman, and a third individual 

appointed by the President to serve as Chairman of the Special Panel, President Reagan appointed 

Barbara Mahone as Chairman of the Special Panel on October 18, 1985. 

During Fiscal Year 1987 the Special Panel issued one decision in a case alleging handicap 

discrimination. 

(See Appendix C for a summary of this decision.) 

LITIGATION 

Litigation in which the Board is named as the respondent arises primarily from civil actions appealing 

decisions issued under the Board's original jurisdiction authority and filed in the various U.S. Courts of 

Appeal. (A Federal Circuit order issued in 1987 eliminated the Board as a respondent in appeals from 

attorney fee decisions and cases which the Board had dismissed for lack of jurisdiction or timeliness.) 

These cases usually involve complex issues such as the extent of the Special Counsel's jurisdiction and 

Hatch Act violations. Other active litigation includes discrimination cases filed in the various Federal 

District Courts, when the Board is a defendant; cases in which the Board intervenes, such as OPM 

petitions for review in the Federal Circuit; cases where Board employees are sued in their personal 

capacities for actions taken by them within the scope of their employment; and administrative 

litigation arising out ofappeals to MSPB filed by the Board's own employees. 

During Fiscal Year 1987 the Board also monitored over 1,000 cases involving appeals from 

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

States Court of Appeals for the Federal Circuit or, in cases involving allegations of discrimination, in 

the various Federal District Courts. The agency is the named respondent in these cases and is 

defended by the Department of Justice. Board activities in connection with monitored litigation 

include responding to inquiries, assisting in the preparation of briefs, preparing a case summary and 

chronology, preparing a legal evaluation, and performing an analysis of the published court decision. 

(See Appendix D for summaries of the significant litigation activities of the Board during Fiscal Year 1987,) 
FOCUSING ON THE FUTURE - IMPROVEMENT OBJECTIVES 

TO ENSURE THE QUALITY OF DECISIONS AND THE ADJUDICATORY PROCESS 

The Board initiated a number of activities in Fiscal Year 1987 to ensure the quality of decisions and the 

adjudicatory process. Of primary importance was the decision, announced in August 1987, to move 

toward greater use of "plain English" in its orders and regulations. Approximately 45 percent of the 

employees whose appeals were decided this year did not have an attorney or other representative. 

Greater use of "plain English" reduces the possibility of confusion with the appeals process and helps 

protect the rights of the parties. The initiative also furthers the Board's goal of promoting uniform 

jurisprudence throughout the regions. 

The "plain English" revisions apply to certain Board orders issued by the Regional Office 

administrative judges during the pendency of an appeal. Included are Acknowledgment Orders, 

Hearing Orders, and Close of Record Orders. Initial decisions now include standard "plain English" 

paragraphs explaining the appeal rights of the parties. 

The new language explains in simple terms when, where and how initial decisions may be appealed. 

The revisions also clearly explain proceedings in attorney fee and enforcement cases. In addition, 

the Board has developed standard instructions to agencies on the materials they are required to provide 

in response to all appeals. 

The Board has established a new system of quality review of the initial decisions issued in the Regional 

Offices, and presentations have been made to the administrative judges to explain the criteria which 

are being used in the quality review evaluations. Under this ongoing program, the decisions of all of 

the administrative judges will be reviewed. 

Training has been an important element in the effort to ensure the quality of decisions in the Regional 

Offices. The administrative judges have attended training programs at the National Judicial College 

and the Department of Justice Legal Education Institute, in addition to Board-sponsored programs. This 

training has focused on quality of decisions, uniform jurisprudence, and, especially, alternative means 

of dispute resolution. 

Catherine R. Gibson, Administrative Judge (right), Victoria R. May (left) 
The Board continues to emphasize settlement procedures because, properly utilized, they ensure 

that the rights of the parties are protected and also provide the single most cost-effective means of 

dispute resolution. The Board's administrative judges utilize a wide variety of dispute resolution 

techniques. They facilitate an exchange between the parties, suggesting possible solutions and 

helping the parties reach a voluntary agreement. They make use of the prehearing conference 

stage of the appeals process to gain an ongoing involvement with the parties, thus facilitating 

settlement. They also may conduct a mini-trial where the participants present a condensed version 

of their best arguments and then discuss settlement. Since these processes are voluntary, the parties 

surrender no rights if an agreement is not reached, and the case can proceed to adjudication. 

The rate of settlement of initial appeals in the Board's Regional Offices has increased from 6 percent 

of cases not dismissed in Fiscal Year 1984 to 36 percent in Fiscal Year 1987. 

• Percent of initial appeals not dismissed for lack of jurisdiction or timeliness. 

(Addendum cases are not included.) 
General Counsel, Llewellyn M. Fischer (left), Counsel to the Chairman for Legal Policy, Garry M. 

Ewing (center), and Deputy General Counsel, Mary L. Jennings (right) 

The emphasis on settlement aside, the Board is in the business of adjudicating cases, not forcing 

parties in a dispute to reach an accommodation. However, alternative means of dispute 

resolution have the potential to do justice more efficiently than traditional adjudicatory processes. 

The finality of the agreement and the cost and time savings are strong incentives to the parties to 

settle their differences. Cost savings are achieved in travel and per diem for the parties, use of 

hearing facilities, recording hearings, and time of witnesses which would be lost during their 

absence for a hearing. 

The need to ensure the development of well-reasoned jurisprudence has resulted in the Board 

issuing fewer short form Orders, which summarily deny petitions for review of initial decisions 

issued by administrative judges in the Regional Offices. Instead, detailed Opinions and Orders are 

being issued in a greater number of cases. The purpose is to issue decisions on questions of law for 

which there is no clear authority, even though the outcome in the appeals involved might not 

change. These precedential decisions can then be relied on by administrative judges in subsequent 

appeals, eliminating the need for writing their own lengthy rationale for reaching the same 

conclusions. Such precedential decisions also serve to inform and guide Federal agencies, their 

employees, and the representatives of both, in taking and defending appealable actions. 

The Board has also concentrated on the resolution of cases involving "major issues." Such issues 

are those that are novel but will occur with some frequency in Board appeals. Their resolution in one or 

two appeals, therefore, allows for resolution in many other cases. 

The Board's staff attorneys devote considerable time to the review of decisions handed down 

by the Board's chief reviewing court, the Court of Appeals for the Federal Circuit, and prepare 

policy position papers on the issues raised in these decisions, as well as on other important legal 

issues. This legal research, which is utilized by the Board in making its decisions, is an important 

contribution to the high quality of those decisions. 

In closed meetings noticed under the Government in the Sunshine Act, the Board addressed 

groups of cases involving complex, unresolved issues of great importance to Federal employees. 

Sunshine Act meetings also were held to vote on a large number of relatively uncomplicated 

cases. Additional meetings have been planned, and the Board is continuing to study the process to determine how it can best be used to expedite its deliberations. 
Director, Office of Appeals Counsel, William DuRoss (center), with attorneys John J. Murphy (left) 

and Lawrence E. Shearer (right) 

Improvements in the adjudicatory process and the quality of decisions have also been achieved 

through the use of automated information technology. A computer research system now allows Board 

attorneys and support staff to perform computerized legal research and to obtain current 

information regarding the status of Board and court decisions. This provides the Board with the 

capacity to ascertain that all case references in decisions reflect the up-to-the-minute status of 

reported case law. Board attorneys now also use a working glossary of repetitive case citations and 

simplified standard paragraphs which are repeated in Board decisions. 

Clerk of the Board, Robert E. Taylor (left), with attorneys John J. Murphy (center) and 

Thomas J. Lanphear (right) 
TO ENHANCE THE MERIT SYSTEMS STUDIES AND REGULATION REVIEW 

FUNCTIONS 

During Fiscal Year 1987 the Board placed renewed emphasis on its statutory function of conducting 

reviews and studies of the civil service and other merit systems. Research was completed for five 

separate reports which together constitute the annual oversight review of the significant actions of 

the Office of Personnel Management. These reports focus on: (1) entry-level hiring into selected 

professional and administrative career positions and blue-collar apprentice positions; (2) the 

revised reduction-in-force (RIF) regulations issued by OPM, which took effect in February 1986; (3) the 

Performance Management and Recognition System, which creates a link between pay and performance for senior level (GM 13-15) Federal managers and supervisors; (4) performance 

management, generally - a broad overview of the Federal Government's efforts to integrate 

performance, pay, and reward systems with mission accomplishment; and (5) the significantly 

expanded delegation of personnel authority for making temporary appointments. The first two of 

these reports, "In Search of Merit: Hiring Entry-Level Federal Employees" and "Reduction-inForce: The Evolving Ground Rules," were issued during the fiscal year. The remainder are to be 

issued in Fiscal Year 1988. 

In addition to these reports on the significant actions of OPM, the Board published a monograph on 

judicial views of the prosecution of prohibited personnel practices by the Office of the Special 

Counsel. The annual report on appeals decisions of the Board during Fiscal Year 1986 was also 

issued. 

(See Appendix E for summaries of these reports.) 

Substantial work was completed on other studies which will be issued in Fiscal Year 1988, including an 

update on "Sexual Harassment in the Federal Government," a report on job satisfaction among 

Federal workers, a report on college recruiting for Federal Government employment, and an overview 

of the latest Merit Principles Survey of Federal employees. A research agenda was developed for studies to be conducted in Fiscal Year 1988 and beyond, including a series of studies which will have as 

their theme "A Ten Year Retrospective of the Civil Service Reform Act" and a continuation of the series 

of reports on the Senior Executive Service. 

The program and policy research underlying the Board's studies is carried out by a 

Director, Office of Policy and Evaluation, Paul D. Mahoney (center), with staff members Carol 

Hayashida (left) and John M. Palguta (right) 
multi-disciplinary team of personnel specialists, program analysts, and personnel research 

psychologists. This staff monitors the Federal civil service system for emerging trends and issues 

related to the basic merit principles and human resources management. Through these efforts, 

augmented by suggestions from agency officials, public interest groups, employee unions, and 

concerned individuals, the Board develops its research agenda. 

The Board's governmentwide studies are conducted through a variety of research methods, 

including mail and telephone survey research, on-site systems reviews, written interrogatories, formal 

round table discussions with subject matter experts, computer-based data analysis, and review of 

secondary source material. Using these methods, the Board has issued a cost-efficient series of special 

study reports on a wide variety of topics. 

Many of the Board's studies have been "first of their kind," examining subject matters from specific 

prohibited personnel practices to broad issues affecting the merit systems. Several topics or issues 

have been reviewed on more than one occasion, allowing the Board to develop time-line data to 

conduct trend analyses on a variety of issues including the impact of the Civil Service Reform Act. 

The Board's studies provide important insights for public policy decision makers concerning civil 

service matters, and a number of the Board's reports have been quoted as authoritative. The 1981 

study of sexual harassment in the Federal Government, for example, is routinely cited as the 

landmark study of this subject. The Board's 1981 and 1984 studies of "whistleblowing" have been 

cited by the President, officials in the Executive branch, and Members of Congress. These studies add 

the Board's expertise to the ongoing debate on important public policy issues dealing with the civil 

service. 

TO CONTINUE TO IMPROVE MANAGEMENT EFFICIENCY AND EFFECTIVENESS 

Of primary importance among the initiatives to improve management efficiency and 

effectiveness was the realignment of Headquarters offices which became effective April 1, 1987. 

The former title of Managing Director was changed to Executive Director to better reflect the 

responsibilities of the position. The former Assistant Managing Director for Regional Operations 

became the Deputy Executive Director for Regional Operations, reflecting both the responsibility to 

supervise the Regional Offices and a new emphasis on providing assistance to the Executive 

Director in carrying out general management responsibilities. 

The four offices of Personnel, Equal Employment, Comptroller, and Information Resources 

Management were combined, bringing all of the Board's administrative operations into a single 

Office of Administration. Previously, each of these offices reported directly to the Executive Director. 

The new office was able to identify and eliminate duplicative functions and services which had resulted 

from overlapping authority in the former separate offices. The result is more streamlined and 

better coordinated administrative support for the Board. 

The internal audit function, which had previously resided in the Office of the Comptroller, was made 

a separate, independent entity, reporting to the Executive Director. The new Office of the Inspector 

General complies with the requirements of the Office of Management and Budget and of the 

General Accounting Office. The Board was cited by OMB in its August 1987 Report on Small 

Agency Compliance with the Requirements of OMB Circular A-73 "Audit of Federal Operations and 

Programs" as one of the agencies which complied fully with the OMB requirements. The 

establishment of the Office of the Inspector General demonstrates the Board's commitment to the 

independence of the audit and investigative functions as c means to improve operating efficiency 

and productivity. 
Executive Director, Lucretia F. Myers 

The office responsible for carrying out both the merit systems studies and reviews of OPM significant 

actions, which are required by statute, and internal management analyses was retitled the Office of 

Policy and Evaluation. Additional personnel were assigned to this office in Fiscal Year 1987, reflecting 

the Board's increased emphasis on the merit systems studies function. The organizational change, 

together with the additional re sources, has resulted in an office which per forms high quality studies 

of the merit system and OPM significant actions, and also provides valuable support to the Board's 

management. The latter is particularly important, given the need to evaluate the effectiveness of the 

various changes in the Board's organization and procedures which have been implemented. 

A realignment of the jurisdictions of the Board's Regional Offices was also effected April 1,1987, 

in order to better balance workload with staff. The changes primarily affected the East Coast 

offices and involved reassigning the state of Maryland from the Philadelphia to the Washington, 

D.C. office, and reassigning several New Jersey counties from the New York to the Philadelphia office. 
MSPB REGIONAL OFFICE JURISDICTIONS 

In addition to the realignment of jurisdictions, the Board made an informal redistribution 

of the caseload in Iwo offices through Fiscal Year 1988. Appeals from the states of 

Kentucky, in the St. Louis office region, and North Carolina, in the Atlanta office region, 

were temporarily assigned to the Philadelphia office. 

In addition to the realignment of Headquarters offices, other management initiatives 

have focused on strategic planning and delegation of authority. The development of action 

plans by individual offices has been tied to specific improvement objectives, and the 

review process has been used to monitor the achievement of objectives and will be used 

in the future to evaluate the organizational performance of executives and managers. 

Managers from the Executive Director down the line are held accountable for the 

successful implementation of their plans in a timely fashion, within available resources, as a 

measure of their performance. 

A key management objective during Fiscal Year 1987 has been to tie the strategic 

planning process to the immediate and long range budget development, so that the resources necessary to achieve operational goals are reflected in the budget requests 

submitted by the Board to OMB and the Congress. This initiative ensures that sound 

business decisions reached in the planning stages will drive budget decisions through an 

integrated planning/budget process. Managers must be aware of the resource implications of their program planning, and are held accountable for their decisions and their 

performance in managing those resources. 
During Fiscal Year 1987 there was a Board-wide effort to decentralize and delegate to the operating 

managers greater responsibility to manage their budgets and operating programs in order to 

increase the financial and operational accountability needed to improve management efficiency. 

The Board continued to expand and enhance its automated systems in Fiscal Year 1987. To take 

advantage of advances in microcomputer technology and enhance management information 

capabilities, new IBM-AT compatible computers were ordered for delivery in early Fiscal Year 1988. 

Use of these new personal computers and commercially available software will improve decisionmaking processes and result in less time spent in preparation of Board documents. 

The Board's automated case management systems provide for the monitoring of all initial appeals, 

petitions for review, and appeal litigation actions, and allow generation of statistical reports on case 

workload patterns, processing times, and other administrative issues. The systems were enhanced in 

Fiscal Year 1987 to collect additional case information, and the groundwork was laid to contract for 

redesign of the systems. 

In April 1987 the Board implemented an automated assignment and correspondence tracking 

system (ACTS) in Headquarters. An automated reports management tracking system (RMTS) was 

also implemented to maintain an inventory of external reports which the Board is required to produce. 

The Board improved its electronic linkage to the National Finance Center (NFC) in Fiscal Year 1987. 

Time, attendance, and payroll data are sent electronically to the NFC, as well as regular 

administrative, budget, and personnel information. The Board also began use of the NFC's automated 

property control system. All capitalized Board property has now been entered into the new system 

and will be controlled and managed by it. The Board is also participating in an NFC pilot 

program, the automated purchase order system. Use of this system is expected to reduce errors 

in data entry at the NFC and to improve the accuracy of the Board's records of its financial 

obligations. 

Director, Office of Administration, Darrell L. Netherton (left), with staff members 

Stephen M. Beckman (center) and Frank E. Hagan (right) 
Clerk of the Board, Robert E. Taylor (center), with staff members Shannon McCarthy (left), and Alicia 

Columna (right) 

TO IMPROVE THE EFFECTIVENESS OF OUTREACH ACTIVITIES 

The Board has taken steps to enhance its reputation as a fair and impartial adjudicator through the 

development of outreach programs to major constituencies. During Fiscal Year 1987 the Board 

members, Board Headquarters staff, Regional Office directors, and administrative judges addressed 

groups, participated in seminars and conferences, and conducted training programs in order to 

further an understanding of the Board's policies and processes, and of important issues in Federal 

personnel law. 

Delegations from the Board participated in the annual Judicial Conference of the U.S. Court of 

Appeals for the Federal Circuit and in Federal Bar Association conferences held in Philadelphia and 

Boston. An MSPB Breakout Session held at the Judicial Conference featured addresses by Board 

Member Devaney and senior Board officials. Summaries of Board decisions were distributed to the 

conference participants, who were public and private sector attorneys, agency representatives, and 

employee representatives. The Federal Bar Association conferences were especially noteworthy 

because they provided Chairman Levinson and Board staff theopportunity to address many legal 

practitioners at a single gathering. Topics included MSPB functions and adjudicatory processes, 

recent Board decisions, and issues involved in attorney fee cases. 

The Board members and Headquarters staff attorneys spoke at a number of meetings of public and 

private sector attorneys, employee relations professionals, Federal labor relations specialists, agency 

representatives, employee union representatives, and EEO specialists. Topics included developments 

in MSPB case law, recent court reviews of Board decisions, MSPB procedures, Federal sector labor 

relations and labor law, the differences between MSPB and EEOC processes, and legislation affecting 

Federal personnel law. Among these meetings were an OPM-sponsored Employee and Labor 

Relations Conference in Virginia Beach, Virginia; a Dispute Resolution Conference jointly sponsored 

by EEOC and the President's Council on Management Improvement in Bethesda, Maryland; a 

Labor Law Conference sponsored by the Illinois Institute of Technology - Kent College of Law in 

Chicago; an EEO Conference on Personnel and EEO Law in Anchorage, Alaska; and meetings of local 

chapters of the Society of Federal Labor Relations Professionals. 
Member Devaney meets with attorneys in San Francisco 

Early in Fiscal Year 1987 the Board sponsored a symposium, open to the public, on reductions-inforce. This was the latest in a series of symposia on topical legal issues in such areas as 

performance-based actions by agencies, attorney fee awards in Board appeals, reasonable 

accommodation of employees' handicapping conditions, and Board hearings and general 

adjudication processes. 

The Board's special studies staff have also been active in outreach activities, addressing various 

meetings of agency managers, personnel officers, and psychologists on personnel management 

topics and such important issues as sexual harassment. Among these meetings were a Nationwide 

Personnel Officers Conference sponsored by the U.S. Department of the Interior in New Orleans, 

Louisiana; an American Psychological Association meeting in New York; an EEO training conference 

in Boston, Massachusetts; and several workshops on the topic of sexual harassment. 

Board staff have served as instructors, both in training programs conducted by other agencies and in 

academic programs, during Fiscal Year 1987. Board attorneys have instructed classes in negotiations 

training at the 

Legal Education Institute of the Department of Justice and in MSPB procedures and "mixed cases" 

at the OPM Training Center. Academic programs included a special course on MSPB practices and 

procedures and Federal labor relations at Howard University, taught by Board attorneys. Members of 

the special studies staff have served as guest lecturers at OPM Executive Seminar Centers and for 

graduate level seminars in public personnel administration at the University of Southern California. 

The Regional Offices have been active in implementing outreach programs. In addition to their 

participation in the Federal Circuit Judicial Conference and the Federal Bar Association conferences, 

the regional directors and administrative judges have accepted every opportunity to represent 

the Board in programs for government personnel officers, Federal employee union personnel, and 

public and private sector attorneys. During Fiscal Year 1987 the regional directors and administrative 

judges delivered almost 150 speeches at meetings and conferences attended by more than 8,500 

participants. 

During the fiscal year the Dallas Regional Office prepared and presented conferences on MSPB law 

and procedures. These confer ences were so well received that they have become the first Boardsponsored conferences approved for continuing legal education credit. 
It was also in Fiscal Year 1987 that the Board established a dialogue with a state government 

personnel Board on matters of common interest and concern. Board representatives spoke before 

the California State Personnel Board, marking the first time that the Board conducted an outreach 

activity before one of its state counterparts. Board activities were also discussed with a member of 

the MSPB of Montgomery County, Maryland. 

A continuing activity of particular interest is the Board's international visitors program. Conducted at 

Board Headquarters by the Chairman and senior staff, this program is responsive to requests from 

foreign visitors who wish to visit the Board in order to learn about merit system principles and the Board's 

practices and procedures. During Fiscal Year 1987 the Board made presentations to several visitors from 

Africa, Canada, and China. 

The Board encourages its employees to publish articles on topical issues of government 

personnel law in academic journals, various legal publications, and trade publications. In Fiscal 

Year 1987, the Howard University Law School devoted an entire issue of the Howard Law Journal to 

MSPB law, the result of a collaboration between the journal's staff and several Board staff 

attorneys and administrative judges. 

Legislative Counsel, Paul E. Trayers 
FINANCES AND HUMAN RESOURCES 

FINANCIAL STATEMENT 

The obligations and expenditures of the Merit Systems Protection Board for Fiscal Year 1987 

(October 1, 1986, through September 30, 1987) are shown below: 

1987 ACTUAL OBLIGATIONS AND EXPENDITURES 

(Thousands of dollars) 

Direct obligations: 

 Personnel compensation 

Full-time permanent ............................................................................... 10,658 

Other than full-time permanent ..................................................................... 706 

Other personnel compensation .................................................................... 155

 Subtotal .......................................................................................... 11,519 

Personnel benefits ........................................................................................ 1,279 

Benefits for former employees .............................................................................46 

Travel and transportation of persons.................................................................... 412 

Transportation of things ......................................................................................63 

Rental payment to GSA ................................................................................. 1,393 

Rental payments to others ..................................................................................53 

Communications, utilities, and 

miscellaneous charges.................................................................................. 686 

Printing and reproduction................................................................................... 108 

Other services .............................................................................................. 1,703 

Supplies and materials ..................................................................................... 266 

Equipment ............................................................................................... 1,007

 Subtotal .......................................................................................... 18,535 

Reimbursable obligations ................................................................................ 1,324

 Total obligations .......................................................................................... 19,859 

Office of Administration staff member, Charles Roche (left), and Boston Regional Office 

Administrative Officer, Maureen Nash-Cole (right) 
HUMAN RESOURCES 

The full time equivalent employment data as reported in the President's annual budgets reflect a 

reduction from a peak of 420 in Fiscal Year 1983 to 300 in Fiscal Year 1987, a reduction of almost 29 

percent. This reduction demonstrates increases in the Board's case management efficiency and 

reduced staffing requirements following the elimination of appeals resulting from the Air Traffic 

Controllers strike of 1981. 

The representation of women and minorities in the Board's workforce is impressive. Women and 

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

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

attorneys, as well as the percentage representation of these groups in the Board's workforce as a 

whole. 

MSPB EMPLOYMENT BY RACE, NATIONAL ORIGIN AND SEX 

Data as of September 30, 1987 

ATTORNEYS 

# in Attorney Workforce % of Attorney Workforce 

 

Male 87 59.59 

Female 59 40.41 

Total 146 100.00 

Minority* 30 20.55 

Majority 116 79.45 

Total 146 100.00 

MSPB (ENTIRE AGENCY) 

# in Workforce % of Workforce 

Male 132 42.03 

Female 182 57.96 

Total 314 100.00 

Minority* 113 35.99 

Majority 201 64.01 

Total 314 100.00 

*Excluding W/F 
As one of six small agencies for which payroll service is provided by the Department of Agriculture, 

the Board is one of only a handful of Federal agencies which provides annual benefits statements to 

its employees, according to a report issued by the General Accounting Office in September 1987. 

Only 10 of the 23 agencies studied by GAO provide employees this valuable service, which is 

provided routinely by many employers in the private sector. 

Acting Director, Equal Employment Division, Sara B. 

Rearden 
REGIONAL BOARD OFFICIALS 

Mark Kelleher 

Deputy Executive Director for 

Regional Operations 

R.J.Payne William Carroll Martin Baumgaertner Paula A. Latshaw 

Regional Director Regional Director Regional Director Regional Director 

Atlanta Office Boston Office Chicago Office Dallas Office 

Jack B. Toll Sean P. Walsh Lonnie Crawford Earl A. Witten 

Regional Director Regional Director Regional Director Regional Director 

Denver Office New York Office Philadelphia Office St. Louis Office 

Denis Marachi Carl Berkenwald P.J. Winzer 

Regional Director Regional Director Regional Director 

San Francisco Office Seattle Office Washington, D.C. Office 
APPENDIX A 

SIGNIFICANT BOARD DECISIONS 

APPELLATE JURISDICTION CASES 
Significant appellate jurisdiction cases decided by the Board during Fiscal Year 1987 included the 

following: 

Arbitration Awards 

Carr v. Air Force, HQ71218610030 (March 17, 1987) 

The appellant requested Board review of the arbitrator's award which sustained his removal. The 

Board found that the arbitrator misinterpreted the law governing reasonable accommodation and that 

its decision in Robinson v. DHHS, 30 M.S.P.R. 389 (1986), which set the standard of review by the 

Board of arbitrator's decisions, was intended to be broad enough to allow the Board to consider issues 

of discrimination law. In Robinson, the Board stated that it would set aside an arbitrator's award 

where the employee establishes error in interpretation of "civil service law, rule, or regulation." 

Hinton v. Navy, H071218610021 (March 24, 1987) 

The record showed that, although the appellant asserted discrimination in his request for review of 

the arbitrator's decision on his removal, he had specifically declined to raise that issue to the 

arbitrator. The Board held that it, therefore, lacked jurisdiction over the case under 5 U.S.C. § 7121. 

Attorney Fees 

Kent v. OPM, DC831L85A0330 (April 15, 1987) 

The Board found that it could look to the legislative history of the attorney fees provision of the 

CSRA for guidance in retirement and other types of cases. It noted that fees should be awarded only 

where OPM 's action can be found blameworthy in some respect. Because of the differences between 

adverse action and retirement cases, however, the application of the criteria will differ. The Board 

found that where OPM's reconsideration decision would not have been reversed without evidence 

presented during the appeal, it is appropriate to resolve the fee award request on an analysis of 

the "clearly without merit" category. In making that determination, the Board must consider: 1) 

whether the appellant was misled by OPM orwhether OPM failed to put him on notice of the kind of 

evidence needed to prevail on reconsideration; 2) the extent to which reversal was based on evidence 

not presented by the appellant but readily available to OPM; 3) the extent to which the appellant 

produced evidence that was so compelling that reasonable minds could not differ as to his eligibility 

for an annuity; and 4) whether OPM's continued refusal to provide the annuity for the appellant 

prolonged the proceedings. In the last instance, the Board noted that it would award fees only 

from the point at which the dispositive evidence was submitted. Member Devaney concurred in 

the result. 

Callan v. OPM, AT831L85A0662 (June 10, 1987) 

The Board amplified the compelling evidence test set out in Kent. It held that it was "a significantly 

higher standard" than is applicable to the usual "clearly without merit" determination, but that this 

heavier burden was appropriate because of public policy considerations and the special nature of 

such appeals. Specifically, appellants in these cases, as distinguished from adverse action and 

performance-based cases, are seeking a benefit from the Government and are required to prove 

their case once they are notified of their appeal rights. Thus, this heavier burden will discourage 

unnecessary proceedings before the Board and the court. The Board noted that the starting point for 

the inquiry in the compelling evidence test is the initial decision which reversed OPM's reconsideration 

decision, since the entitlement to fees must be viewed from that vantage point. It noted, however, that 

the question of whether the evidence of record, given the weight attributed to it in the decision on 

the merits, meets the compelling evidence standard is a conclusion of law, so that the Board is not 

bound by the administrative judge's conclusion on the point, which it would be if it were a matter of 

fact. Member Devaney concurred in the result. 

Stephens v. OPM, SF831 L84A9006 (March 23, 1987) 

The Board here determined to give retroactive application to the Federal Circuit's decision in 
Simmons v. OPM, which concluded that the Board has the authority to award attorney fees to 

prevailing appellants in retirement cases. It noted that there is a presumption of retroactivity in our 

law, and that retroactive application would be consistent with the purpose of the CSRA to alleviate the 

economic burden of the appeal process and with Federal Circuit's precedent. The Board also found 

that this decision was consistent with Supreme Court guidance in Chevron Oil Co. v. Huson because 

Simmons did not overrule clearly established precedent. Moreover, retroactive application would not 

impose an unreasonable financial burden on OPM because the rule would be applicable to a limited 

number of appellants. 

Woodall v. FERC, DC075282A0678 (April 1, 1987) 

The Board held that in determining an award of attorney fees, the backpay amount is not relevant 

to determining the extent of victory. Rather, the Board must consider whether the action is mitigated 

or reversed; if mitigated, whether the penalty is major or minor; and the gravity and circumstances of 

the sustained charges. It next found that the agency's fault or lack of fault should not be the 

controlling factor in a determination of whether fees are warranted on the basis of gross procedural 

error. Prior cases implying the contrary were modified. 

Lambert v. Air Force, SF075286A0109 (August 14, 1987) 

The Board held that the agency's selection of a penalty was part of the "merits" of the case and 

that an award of fees is warranted where the agency knew or should have known that its choice of 

penalty would be reversed. It noted that the standard for review of a penalty announced in Douglas, 

i.e., that the Board would mitigate only where it found the penalty to be beyond the limits of 

reasonableness, meant that where an agency's action is reversed on the basis of its penalty, the 

agency acted irresponsibly or unreasonably and should know that it would not be sustained. It 

concluded that fees will generally be awardable under this standard when all of the charges are 

sustained, but the penalty is mitigated on the basis of evidence which had previously been presented to 

the agency. 

Discrimination 

Faulk v. Navy, PH07528610547 (March 2, 1987) 

The appellant sought reassignment to a typist position as an accommodation to her handicap. The 

Board found that while the appellant might be able to perform as a typist after several months to a year 

of training, she did not now possess the requisite typing skills to qualify her under the published job 

standards. It concluded that because she was unable to perform an essential function of the job, she 

was not a qualified handicapped employee as to that job and, thus, no handicap discrimination was 

found. Member Devaney dissented without opinion. 

Sheen v. Air Force, SF07528610363 (March 19,1987) 

The Board found that the agency accommodates an employee by making him aware in general 

terms that a problem exists and recommending that he participate in a rehabilitation program. It thus 

rejected establishing a requirement that the employee be offered a "firm choice" between 

rehabilitation and adverse action. 

Marchese v. Navy, PH07528610209 (March 4, 1987) 

The Board held that because 5 U.S.C. § 7702(a) requires that the Board decide discrimination 

issues raised in connection with otherwise appealable matters, its administrative judges should decide 

an appellant's allegation of discrimination even where the action is overturned on procedural grounds. 

To the extent that earlier Board cases may be inconsistent, they were overruled. 
Enforcement 

Redding v. U.S. Postal Service, AT075285C0863 (January 29, 1987) 

The appellant was removed for failure to report for a fitness-for-duty examination, and he appealed, 

claiming that the agency's physician had unilaterally cancelled his appointment. Upon submission 

of proof of such cancellation, the agency voluntarily rescinded the removal action and reinstated 

the appellant, The Board dismissed the appellant's appeal of his removal, but retained jurisdiction 

to insure agency compliance. Thereafter, the appellant filed a petition for enforcement on the ground 

that the agency failed to award him back pay. The appellant also contended that back pay 

should be awarded for the period prior to his removal when he was in leave status because of alleged 

physical inability to perform the duties of his position. The Board held that the appellant could not raise 

a claim of constructive suspension prior to his removal via a petition for enforcement, but that 

the agency did not provide concrete and positive evidence that the appellant was unwilling to work 

during the period after his removal. Thus, the appellant was entitled to back pay during the latter 

period only. 

Dwyer v. U.S. Postal Service, DE075285CO247 (January 28, 1987) 

The administrative judge found that the agency had failed to establish that the appellant was 

emotionally unfit to perform the duties of his position without endangering the health and safety of 

himself and others, and ordered the agency to reinstate the appellant. After the appellant was 

reinstated, he filed a petition for enforcement of the initial decision. The Board held that the 

appellant was entitled to back pay from the effective date of his removal until the date of his reinstatement, including any overtime he would have earned during the period of the erroneous removal, 

even though he was not on the "overtime desired list"; and that the appellant was entitled to receive 

sick and annual leave for the period from his removal to the date of the hearing. 

Jordan v. U.S. Postal Service, PH075285C0619 (February 25, 1987) 

The appellant's appeal of his removal from his postmaster position was dismissed for mootness 

when the agency represented to the administrative judge that it had withdrawn its notice of 

proposed removal and canceled the removal action. After the appellant's request for an award of 

back pay was denied, he filed a petition for enforcement. The Board held that the appellant had a 

right to back pay from the date of his removal to the date of his reinstatement, and that the 

appellant had no duty to mitigatedamages during the period of his removal in order to be entitled to a 

back pay award under agency regulations. 

Carter v. U.S. Postal Service, CH075285C0654 (July 28, 1987) 

The appellant appealed his removal from his city carrier position for physical inability to perform the 

duties of the position. The Board found that the agency engaged in handicap discrimination, and 

ordered the agency to cancel its removal action and retroactively restore him to duty. Thereafter, 

the appellant petitioned for enforcement. The Board held that the agency was required to compute 

overtime compensation, for purposes of the back pay award, based on the average number of 

overtime hours worked by full-time, not limited duty, employees at the post office, with regard to the 

appellant who was reinstated in the former position working only two hours per day, but who was later 

retroactively restored to full-time status. 

Marren v. Department of Justice, DA075285C9010 (August 24, 1987) 

The Board held that the agency willfully violated the Board's back pay order by deducting 112 

hours during the period of unwarranted removal for reasons related to the appellant's participation in 

union activities. The Board found the appellant's participation in "internal union business" irrelevant to 

his entitlement to back pay and benefits, stating that the only legitimate points of inquiry concerning 

the appellant's activities during the period of his removal are whether he was remunerated for any 

work he may have performed, and whether he was ready, willing and able to resume his official 

duties. The Board also found that the agency acted improperly in unilaterally placing the appellant on 

LWOP because that status may only be granted upon an appellant's request, and the appellant here 
never made such a request. The Board referred the matter of the agency's noncompliance to the 

Special Counsel, and ordered the persons responsible for the agency's noncompliance to appear 

before the Board to show cause why their salaries should not be withheld for the periods of 

noncompliance. Because the agency later submitted evidence of compliance, the hearing has been 

postponed. 

Ignacio v. U.S. Postal Service, SF075281C0438 (September 22, 1987) 

The appellant petitioned for enforcement of the Special Panel decision in this case, arguing that 

the agency was in noncompliance because it had reassigned him from his position after his 

reinstatement and owed him back pay. The appellant had been a letter carrier and was reassigned to 

a distribution clerk position on reinstatement. The Board rejected the agency's argument that the 

Special Panel decision required the reassignment. It noted that the Special Panel had adopted 

EEOC's decision, which referred to the agency's failure to consider accommodations to the 

appellant's handicap short of reassignment. Moreover, the Board found no "reasonable basis" for the 

decision of the agency doctor that the appellant was physically unqualified to be a letter carrier, based 

only on the record, which overturned a decision of an independent examining physician selected by 

the agency. Finding that the agency's efforts to accommodate the appellant through reassignment 

came at a time when the appellant had already recovered and, therefore, was not in need of 

accommodation, the Board concluded that the reassignment did not constitute compliance with the 

final decision in the case. The Board further held that the appellant's inability to bid on a router 

position in the carrier craft because he had been placed in the clerk craft was a result of the 

agency's noncompliance. As to back pay, the agency asserted that, had he not been removed, the 

appellant would have been reassigned to the clerk craft, so that his back pay should be based on a clerk's 

salary, not a carrier's. The Board, however, ordered the agency to pay back pay based on the 

carrier position, which was the appellant's position at the time he was removed. The Board noted that 

the appellant had met his burden of showing that he was ready, willing, and able to work during the 

period he was off the rolls. Finally, the Board found that because the agency failed to take action to 

accommodate the appellant in the carrier craft, and in light of the finding that he was a qualified 

handicapped person, the appellant proved that he was able to perform in the carrier craft. 

Hicks v. U.S. Postal Service, PH035386C0104 (September 18, 1987) 

In its final decision, the Board ordered that the appellant be given priority consideration for restoration 

on the basis of his partial recovery from a compensable injury. When the appellant filed a petition 

for enforcement, the Chief Administrative Judge held that the agency had complied in all ways but 

one, i.e., it had not placed his name on a reemployment priority list for Charleston, SC, his last place of 

residence in the US. The agency then placed his name on the list and offered him a part-time 

position. At about the same time, the appellant filed objections to the CAJ's Recommended 

Decision, asserting that he was entitled to back pay and that the agency had earlier offered positions 

to others. The Board found that the decision did not entitle the appellant to back pay for any period 

prior to its date of issuance; that the appellant's argument that others had been appointed prior to 

that date was thus without merit; and that the appellant did not show that he had a right of 

restoration, as opposed to priority consideration, to his former job. The Board, therefore, denied the 

appellant's request for review of the Recommended Decision and dismissed the petition for enforcement. 

Garibay v. Veterans Administration, SF075285C90101 (September 29, 1987) 

The Board affirmed the administrative judge's recommendation that the appellant be found in 

noncompliance with the Board's order because he had failed to cooperate in the calculation of the 

amount due and because his actions were fraudulent. The AJ found, and the Board agreed, that the 

appellant's assertions that he had not earned any income during the period he was off the rolls was 

not credible in light of the other evidence taken at a hearing on the issue, which indicated that he 

had worked for his brother-in-law and been paid "under the table." In light of the fraudulent nature of 

the appellant's acts, the Board found that he should be denied any payment of back wages. 
Evidentiary Matters 

D'lorio v. DHUD, BN07528610191 (July 28, 1987) 

The Board found that an administrative judge acts properly in requiring the parties to stipulate to 

matters which are not in dispute, analogizing to Fed.R.Civ.P. 16, which is intended to simplify the 

issues and eliminate the waste of time at trial. However, the scope of the stipulation may not be 

expanded beyond the purpose for which it was made. Thus, where the stipulation does not encompass the entire scope of the agency's charges or other relevant issues, a stipulation to a portion 

of a charge does not foreclose the presentation of evidence on other matters. 

Sommer v. Navy, AT03518610588 (August 25, 1987) 

The Board held that hearings are required in RIF actions even in the absence of a dispute about a 

material fact, but that such hearings are subject to the administrative judge's evidentiary rulings on 

materiality, relevance, and repetitiousness. The Board found that 5 U.S.C. §7701(a), its legislative 

history that included elimination of Board authority to grant summary judgment, and the Federal 

Circuit's decision in Crispin v. Commerce, 732 F.2d 919 (Fed. Cir. 1984), mandate administrative judges 

to hold hearings even where there is no dispute about a factual matter. In reaching this result, the 

Board rejected various arguments, including the assertions that 5 C.F.R. § 351.901 limits employees' 

rights to hearings in RIF cases, and that hearings under such circumstances would be meaningless and 

unnecessarily clog the Board's busy docket. The Board also found, however, that where there is no 

dispute about a material fact, the hearing should consist of an opportunity to present argument, 

rather than a full evidentiary hearing. 

Jurisdiction 

Pittman v. Army, DA07528610063 (March 13, 1987) 

After considering its decision in Mosely and the Federal Circuit's decisions in Thomas and Mercer, the 

Board found that the placement of a physically disabled employee on enf o r c e d l e a v e b y 

i t s e l f d o e s n o t constitute a suspension when there is no pending inquiry. It stated that no 

earlier cases intended to include enforced leave actions that could be construed as having been 

taken to prevent injury or disruption to agency activities. The Board therefore modified an earlier 

decision to the extent necessary to limit its holding to cases where the employee is placed on 

enforced leave pending inquiry. It thus held that both the Mosely "ready, willing and able" test and 

its "disciplinary" test apply to enforced leave cases involving physically disabled employees other 

than those in which the employee is placed on leave pending inquiry. Member Devaney issued a 

dissenting opinion on April 1, 1987. 

Sullivan v. Agriculture, NY315H8610394 (January 30, 1987) 

The Board held that while an employee appointed from a civil service register is required to serve 

a probationary period, prior service may be counted toward its completion when it was: rendered 

immediately preceding the career-conditional appointment; in the same agency and in the same line 

of work; and with no more than one break of less than 30 days during it. The Board noted that the 

determination of whether two positions are in the same line of work is based on the duties of the 

jobs, and that they are in the same line if they would be in the same competitive level for RIF 

purposes. 

Martinez-Claudio v. VA, NY07528610595 (April 16, 1987) 

The Board distinguished creditability of previous service in a temporary position for determining 

the appeal rights of an excepted service employee from those of a competitive service employee. 

For the former it is creditable; for the latter it is not. The distinction is based on 5 U.S.C.§ 7511, which 

excludes temporary service for competitive service employees but not for those in the excepted 

service. 
Payne v. Interior, SF07528610581 (March 19, 1987) 

The Board held that a RIF action is involuntary because it can only be effected for one o f t h e 

r e a s o n s s t a t e d i n 5 C . F .R . §351.201(a)(2). Thus, a RIF appeal cannot be defeated on the 

grounds that it is voluntary because the appellant consented to the action. 

Campbell v. DLA, PH07528510172 (November 20, 1986) 

The Board determined that an agency is not always required to end an indefinite suspension at the 

conclusion of the underlying criminal proceedings and upon the issuance of the notice of proposed 

removal. It set three criteria which must be met in order to continue a suspension under those 

circumstances: (1)There must be a resolution of the charges, (2) the employee must have been advised 

of the possibility of further administrative action at the time the suspension was proposed, and (3) the 

additional action must be initiated within a reasonable time after the conclusion of the criminal matter. 

Mosley v. Navy, PH07528510766 (November 20, 1986) 

Based on the decision in Phipps v. DHHS, 23 M.S.P.R. 486 (1984), aff'd on other grounds, 767 F.2d 895, 

897 (Fed. Cir. 1985), the Board held that the return of an employee to his regular position from a 

temporary promotion which lasts more than two years does not require the invocation of adverse 

action procedures. Thus, an appeal from an employee's return to his official position under those 

circumstances is not within the purview of its appellate jurisdiction. 

Nexus 

Kruger, et al. v. Justice and OPM, CH07528510621, 648, 649 (January 8, 1987) 

The Board here stated that nexus may be shown (1) through a rebuttable presumption in certain 

egregious circumstances, (2) by a showing that the conduct adversely affects the appellant's work 

performance or that of his coworkers, and (3) by a showing that the mi s condu c t adver sely 

a f fec ted the agency's mission. It then held that the third n e x u s s h o w i n g m a y b e m a d e 

b y proving "that an employee engaged in off-duty misconduct that is directly opposed to the 

agency's mission." The Board noted that to the extent that its earlier Merritt decision implied that 

nexus could only be proven by evidence of actual impairment of service efficiency or a rebuttable 

presumption, it was in error. 

Settlements 

Rose v. Army, SE075283CO238 (April 21, 1987) 

The appellant's case was settled on appeal to the Board. In response to the agency's argument 

that its representative had no authority to bind it, the Board found no basis for the agency's assertion 

of limited authority. The attorney of record is deemed to have authority to settle a case absent 

evidence to the contrary, and the party asserting a lack of authority has a heavy burden which cannot 

be met by conclusory statements. No agency regulation limiting the representative's authority 

was cited and the agency has not contended that what it had agreed to do would violate a statute or 

regulation. 

Unacceptable Performance 

Fairall v. VA, CH07528310623-1 (March 12, 1987) 

The Board construed the court's decision in Lovshin v, Department of the Navy, 767 F.2d 826 (Fed. Cir. 

1985). It concluded that appellants who are subject to Chapter 75 actions for performance reasons 

are not entitled to an opportunity to demonstrate acceptable performance prior to the effectuation 

of the action. It noted portions of the Lovshin decision which could be interpreted to the contrary, 

but found overall that the court did not imply that an opportunity period was required by Chapter 

75. It stated that even if Lovshin could be interpreted to say that the violation of a merit system 

principle was, per se, a prohibited personnel practice, neither 5 U.S.C. § 2301(b)(6) nor (b)(7) 

establishes a right to an improvement period in Chapter 75 cases. Instead, the Board stated that it will 
continue to hold that the question of whether such an opportunity was afforded would be relevant in 

assessing the reasonableness of the penalty because one of the Douglas factors is the extent to 

which the employee is on notice that his deficient performance or conduct may be the basis for an 

adverse action. Moreover, to the extent that an opportunity period is afforded in a Chapter 75 

action, the requirements of Chapter 43 are inapplicable, e.g., that only unsatisfactory (rather than 

minimally acceptable) performance be the basis for the action or that the improvement period occur 

prior to the notice of proposed action. The agency may rebut a challenge to its failure to afford an 

opportunity period or notice of performance deficiencies by showing, among other things, that 

those deficiencies were willful or that affording the time would have resulted in unreasonable 

costs or risked the health and safety of others. Member Devaney dissented. 

Afifi v. Interior, DC531D8610254 (April 16, 1987) 

The Board reversed earlier policy and determined that in mixed ALOC appeals which are appealable 

to courts in judicial circuits which apply the preponderant evidence test, it would nonetheless 

apply the substantial evidence test. It held that it is obliged to apply its own view of civil service law in 

mixed cases, and is bound by the precedent of the Federal Circuit. Moreover, this action will help develop 

a uniform civil service jurisprudence. 

Whistleblowers 

Oliver v. DHHS, DC07528610158 (August 13, 1987) 

The appellant was removed for failure to follow a direct instruction, disrespectful conduct, and 

refusal to provide certain information at an agency meeting. With respect to the appellant's 

allegation that her removal violated 5 U.S.C. § 2302(b)(8), the Board found that the appellant's 

memoranda addressed matters which (in the strict sense) are entitled to protection because they 

address perceived inequities in the awarding of grants and a general insensitivity toward minority 

participants in the program. Other matters of more personal interest to the appellant are also 

protected. It also held that there was an inference of a retaliatory motive because the targets of the 

disclosures were the proposing and deciding officials and the charges relied directly on the protected 

disclosures themselves. However, based on an analysis of the facts, the Board found that a nexus did 

not exist and that the action was not shown to have been taken in retaliation. In the Board's analysis, 

the motive to retaliate must be weighed against the gravity of the misconduct charged. Here, the 

tone and wording of the numerous memoranda are so intemperate and otherwise improper as to 

warrant discipline. In reaching this conclusion, the Board noted that even in a first amendment 

analysis, courts hold that constitutional protections may be lost when the content, form, and context 

of statements are considered. It thus held that the inference of retaliation on the agency's part was 

outweighed by the gravity of the appellant's misconduct, particularly the manner and means by which 

she made her disclosures. The removal action was sustained. Member Devaney dissented without 

opinion. 
APPENDIX B 

SIGNIFICANT BOARD DECISIONS 

ORIGINAL JURISDICTION CASES 

Significant original jurisdiction cases decided by the Board during Fiscal Year 1987 included the 

following: 

Special Counsel Cases Hatch Act Cases 

Special Counsel v. Biller, et al., HQ12068510018 (February 5, 1987) 

The Board found violations of the Hatch Act by three full-time union officials who were on extended 

leave without pay from their Federal positions, but, because these cases were ones of first 

impression, did not impose removal penalties. Instead, the Board found that the Administrative Law 

Judge's recommendation of 60 days' suspension was reasonable. It noted that the respondents were 

likely to escape any discipline because they did not receive Federal salaries, but ordered that any 

additional benefits of Federal employment also be denied during the suspension period. Chairman 

Levinson wrote a separate concurring opinion urging that policymakers reconsider the 

reasonableness of long-term open-ended LWOP arrangements such as occurred here. Member 

Devaney wrote a concurring opinion in which he questioned whether the Board could enforce the 

recommended penalty, agreed that the Hatch Act applies to these respondents, and noted that it is 

for Congress, not the Board, to change that if it so desires. 

Special Counsel v. Kehoe, HQ12068610005 (February 27, 1987) 

The Board held that: (1) the Hatch Act applies to covered state employees regardless of their leave 

status; (2) the Board was not barred under the doctrine of "virtual representation" from ruling on the 

applicability of the Hatch Act to covered Minnesota state employees on leave status; and (3) Mr. 

Kehoe's violation of the Hatch Act by running as a candidate for the Minnesota state legislature was of 

such scope and effect as to warrant removal. Chairman Levinson concurred in a separate opinion. 

Special Counsel v. Camillieri, HQ12068610010 (May 12, 1987) 

The Board held that an employee of a state government violated the Hatch Act bybeing a 

candidate for councilman in a Democratic primary election. The Board found that the employee 

knowingly violated the Act and that removal was a proper penalty. 

Special Counsel v. Camillieri, HQ12068610010 (September 29, 1987) 

In this decision of first impression, the Board ordered that the U.S. Department of Health and Human 

Services withhold funds from the Connecticut Department of Human Resources because it failed to 

remove Mr. Camillieri for violation of the Hatch Act, as the Board had directed. The Board found that 

the fact that the agency had appealed the Board's order to the district court did not provide a 

basis for denying issuance of a withholding order since the court did not order a stay. It also 

declined to issue a stay of the withholding order, finding that the four-part test for the issuance of a 

stay had not been met. Finally, it found no basis for delaying 30 days in informing DHHS to withhold the 

funds, as the state agency had asked. 

Special Counsel Cases Disciplinary Actions 

Special Counsel v. Russell, HQ12068410016 (February 9, 1987) 

Although there was conflicting evidence on nearly all important facts concerning the charges of 

sexual harassment of subordinate employees, the Board found no reason to substitute its own fact 

findings for the Chief Administrative Law Judge's determinations. It rejected the respondent's 
assertion that only the head of the agency and not the Special Counsel had authority to discipline 

employees for sexual harassment. It then held that the CALJ did not err in refusing to require one 

of the victims of harassment to answer interrogatories intended to disclose any possible history of 

mental illness or addiction, noting that sexual harassment through creation of a hostile environment 

can be proven without evidence of the psychological effect on the victim if there is evidence that 

her work was adversely affected, as is true here. The Board, therefore, adopted the CALJ's 

recommendation that the appellant be demoted from his SES position to the GS-13 level for a period not 

to exceed 3 years. In a separate opinion dissenting in part, Vice Chairman Johnson would have 

modified the penalty to assure that during the 3-year period the appellant would not be reemployed 

as a supervisor at any grade level. 

Special Counsel v. Mongan, HQ12068610004 (April 17, 1987) 

The Board found that the respondent refused to promote an employee in reprisal for her protected 

disclosures to the Inspector General's office. The Board noted that two circuit courts have recently 

questioned - without deciding - the Board's practice of not applying the Mt. Healthy test to Special 

Counsel disciplinary action cases. It therefore applied the test to the facts of this case and concluded 

that, even if it is applied, the outcome is the same, i.e., the respondent did not establish that he would 

have taken the action but for his retaliatory motive. The Board concluded that the 60-day suspension 

recommended by the Administrative Law Judge was reasonable. 

Special Counsel v. Ross and Catledge, HQ12068510034 (June 26, 1987) 

The Special Counsel charged the respondents with the commission of prohibited personnel practices 

(5 U.S.C. §2302(b)(4), (5), and (6)) as a result of violations of several regulations. The charges 

arose from their attempts to secure the withdrawal from competition of other candidates for two 

jobs which they had created with a current temporary employee in mind. That employee was 

eventually selected for one of those jobs. In light of the Federal Circuit's limitation of the Special Counsel's 

authority in Homer v. MSPB, the Board determined that it need not decide whether the Special 

Counsel was authorized to bring charges under 5 C.F.R. § 735.209 because the gravamen of the 

charges citing those sections is the commission of prohibited personnel practices, which is sufficient to 

sustain the charges. It found that the respondents' exceptions to the recommended decision of the 

Chief Administrative Law Judge constituted mere disagreement with his findings of fact and 

credibility determinations and, therefore, provided no basis for ignoring the recommendations. The 

Board ordered that Catledge be demoted from GS-11 to GS-9 for a eriod of at least one year and that 

Ross, his subordinate, be demoted one grade for a minimum period of one year. 

p

Actions Against Administrative Law Judges 

Clerman, et al v. /CC, 

HQ75218510022 (September 30, 1987) 

The appellants were Administrative Law Judges who, along with all other agency employees, were 

informed that they were subject to being furloughed for 26 non-consecutive workdays. The actions 

were taken under RIF procedures. The Board noted that OPM has interpreted 30 calendar days to 

mean 22 work days when a furlough is not served on consecutive days. Thus, the Board concluded 

that RIF procedures were properly invoked for this furlough. Since ALJs have only enhanced adverse 

action protections, but not RIF protections, the Board found no basis for interpreting the word "days" 

differently in this case. Although the budget problem abated earlier than anticipated, and the 

furloughs actually lasted only 8 days, which would have constituted an adverse action, the Board 

held that, in the absence of a showing of bad faith, it would not overturn an agency action because it 

incorrectly estimated the length of the furlough. 
Review of Regulations 

In re ... SSA, 

HQ12058610020 (September 25, 1987) 

The Board rejected AFGE's request that it review the Social Security Administration's implementation of 

5 C.F.R. Part 430 by establishing allegedly arbitrary performance standards. The Board based its 

decision on the fact that there is a substantial likelihood that the issues raised will be reached in a 

timely fashion through ordinary appeal channels, and the fact that it would not be in the public 

interest and would harm the operation of the Government for the Board to invalidate portions of the 

appraisal system on the basis of an incomplete record. 
APPENDIX C 

SPECIAL PANEL DECISION 

During Fiscal Year 1987 the Special Panel issued one decision: 

Shoemaker v. Department of the Army (September 2, 1987) 

Handicap Discrimination - Accommodation 

In a unanimous decision, the Special Panel adopted the Board's decision in this case, which involved 

a Chapter 43 performance-based removal. 

The appellant had been a Federal employee for approximately 24 years when he advised the 

agency that he intended to apply for disability retirement because of an ocular disability (double 

vision). Following this notification, the appellant received notice of proposed removal for failure to 

meet two critical elements of his position. The appellant's most recent performance rating had been 

"marginally satisfactory." 

The appellant's removal was effected by the agency on May 25, 1983, and on May 31, 1983 the 

appellant was notified by OPM that his disability retirement application was granted. Thereafter, the 

appellant filed an appeal of his removal with MSPB, contending that his removal was the result of 

handicap and age discrimination, and that the agency had committed harmful procedural error by 

failing to hold the removal action in abeyance while his disability retirement application was 

pending with OPM. 

The appellant's removal under Chapter 43 was sustained by the administrative judge, who found 

that the agency was under no obligation to hold the removal action in abeyance pending OPM's 

decision on his disability retirement application. The administrative judge also found that the agency 

was not required to reassign the appellant as an accommodation to his handicap; however, this was 

prior to the Special Panel decision in Ignacio v. USPS, which requires Federal agencies to consider 

reassignment as a reasonable accommodation for physically handicapped employees. 

On review, the EEOC found that the agency's unexplained failure to hold the removal action in 

abeyance was the result of handicap discrimination. (No age discrimination was found.) When the 

case was referred to the Board, it disagreed, holding that EEOC's decision had been based solely on its 

reading of an internal Department of the Army regulation which was inapplicable to Chapter 43 

cases and which, additionally, had been superceded by a regulation which contained no provision 

requiring that removal actions be held in abeyance pending a determination on a disability 

retirement application. Although the Board agreed with EEOC that under the Special Panel's decision in 

Ignacio, the agency had to consider reassignment, it found that the evidence indicated no positions 

existed to which the appellant could be reassigned. 

The case was referred to the Special Panel for resolution. In its decision, the Panel agreed with the 

Board that the EEOC's decision was based on its interpretation of the agency's regulation and, 

therefore, on civil service law. It further found that the agency's regulation did not require that the 

removal action be held in abeyance. Thus, the Panel deferred to the Board's determination and no 

handicap discrimination was found. 

In their separate concurring opinion, EEOC Chairman Thomas and Board Member Devaney stated that 

when OPM granted the appellant's application for disability retirement one week after his removal, 

the agency had the discretion to amend its records to show that he was on sick leave until the 

effective date of his retirement, and that his separation was by retirement. They noted that the 

agency's failure to do so resulted in an expenditure of time and money "completely out of proportion 

to the legal merits of the case." 
APPENDIX D 

SIGNIFICANT LITIGATION 
Significant litigation during Fiscal Year 1987 included the following: 

Intervention in OPM Initiated Litigation 

Homer v. Andrzjewski, 811 F.2d 571 (Fed. Cir. 1987) 

The Court found that the Board had improperly invalidated the emergency furlough regulation, 

which provides that the 30 day advance notice and opportunity to reply normally required prior to a 

furlough may be dispensed with in certain situations. 

Homer v. Acosta, et al., 

803 F.2d 687 (Fed. Cir. 1986) 

The Court overturned the Board's decision that service performed under a personal service contract 

with a Federal agency is creditable toward civil service retirement as long as the individual performs a 

Federal function and is supervised by a Federal official. 

Homer v. Schuck and Washington (Pending Federal Circuit Decision) 

The OPM sought review of a Board decision that interpreted the Postal Service's collective 

bargaining agreement in reaching its determination that certain employees had been furloughed 

without proper procedures. The Board intervened, arguing that the Court has no jurisdiction over a 

"mixed case" appeal and that OPM's right to seek judicial review does not encompass 

disagreements over the interpretation of a collective bargaining agreement. 

Homer and Williams v. Merit Systems Protection Board and Wieseman, 815 F.2d 680 (Fed. Cir. 

1987) 

The Court reversed the Board's decision that the Special Counsel has the authority under 5 U.S.C. 

§ 1206 (e)(1)(D) to investigate a n d p r o s e c u t e v i o l a t i o n s o f t h e Government's ethics laws 

and regulations. 

Homer v. Benedetto (Pending Federal Circuit Decision) 

This case involves the issue of whether retirees who ceased working for the Federal Government prior 

to 1956 but did not become eligible for retirement benefits until after 1966 are entitled to survivor 

annuity rights under the Civil Service Retirement Act. 

Special Counsel - Related Litigation 

Filiberti and Dysthe v. MeritSystems Protection Board, 804 F.2d 1504 (9th Cir. 1986) 

The Court affirmed the Board's findings that two high-level personnel officers committed a 

prohibited personnel practice by influencing a disabled veteran applicant to withdraw from 

competition in order to secure the mistaken appointment of a nonveteran. The Court found that the 

Board could not modify the penalty levied when one of the personnel officers chose to retire. 

Biller and Sombrotto v. Merit Systems Protection Board, (Pending 2nd Circuit decision), and Blaylock 

v. Merit Systems Protection Board (Pending in 11th Circuit) 

These cases involve the issue of whether the Board properly found that three union presidents 

who were on leave without pay violated the Hatch Political Activities Act (Hatch Act) by endorsing 

Walter Mondale for President, soliciting votes for Mondale, and soliciting funds to be used to support 

Mondale's candidacy. 
State of Connecticut, Department of Human Resources and Wayne Camillieri v. Merit Systems 

Protection Board (Pending in Connecticut district court) 

The State of Connecticut, Department of Human Resources (DHR) and Wayne Camillieri, a State 

employee, have challenged the Board's decision finding that Camillieri violated the Hatch Act by 

running in a partisan primary election for city council and that this violation warranted removal. The 

State has also challenged the Board's related decision, entered as a result of the State's failure to 

remove Camillieri, ordering the U.S. Department of Health and Human Services to withhold from 

Federal monies paid to DHR an amount equal to two times Camillieri's salary at the time of his 

Hatch Act violation. 

State of Minnesota, Department of Jobs and Training v. Merit Systems Protection Board (Pending in 

8th Circuit) 

The district court of Minnesota held that the Board properly found that a state employee, whose 

employment was in connection with Federal funds and who ran for political office while on leave 

without pay, had violated the Hatch Act. However, the district court reversed the Board's 

determination that the employee's violation was willful and warranted removal. The Board appealed 

the holding concerning the removal to the 8th Circuit. 

Attorney Fees 

McAlear v. Merit Systems Protection Board, 896 F.2d 1016 (Fed. Cir. 1986) 

The Court affirmed the Board's decision finding it had no authority to adjudicate McAlear's claim 

for attorney fees, whether the claim was against his former client McBeen's employing agency or a 

settlement fund. McAlear had represented McBeen in a Board appeal until McBeen substituted another attorney for him. Thereafter, McBeen reached a settlement with the agency under which she 

received $150,000, agreed to withdraw her motion for fees, and agreed to hold the agency harmless in 

any action brought by McAlear. 

Jurisdiction 

Espenschied v. Merit Systems Protection Board, 804 F.2d 1233 (Fed. Cir. 1986) 

The Court affirmed the Board's decision that under 5 U.S.C. § 7121(a)(1) the petitioner's exclusive 

avenue of redress of the denial of his within-grade increase was the negotiated grievance procedure. 

The Court agreed that the Board did not have jurisdiction, even though the employing agency had 

informed the petitioner that he could proceed either by appeal to the Board or through the 

negotiated grievance procedure. The Court also rejected the petitioner's contention that the agency's 

erroneous instructions with respect to the within-grade denial caused his appeal of his removal to be 

untimely and affirmed the Board's dismissal of the removal appeal. 

Smith v. Merit Systems Protection Board, 813 F.2d 1216(Fed. Cir. 1987) 

The Court affirmed the Board's decision finding no jurisdiction over the Chapter 43 reduction in 

grade of a National Labor Relations Board (NLRB) excepted service attorney. The Court held that the 

Office of Personnel Management (OPM) had not conferred jurisdiction on the Board to hear such 

appeals by approving the NLRB performance appraisal system which indicated that non-preference 

eligible employees could appeal to the Board. The Court held that under Chapter 43, OPM did not 

have the authority to extend appeal rights to excepted service employees. 

Wilson v. United States Postal Service, 807 F.2d 1577 (Fed. Cir. 1986) 

The Court affirmed the Board's decision that a reassignment from one category to another of 

Postmaster was neither a reduction in pay nor a reduction in grade. 
Timeliness 

Turner v. Merit Systems Protection Board, 806 F.2d 241 (Fed. Cir. 1986) 

The Court affirmed the Board's dismissal of the petitioners' appeals as untimely, finding no basis for 

the petitioners' asserted belief that the pendency of an appeal from a Board decision denying 

class certification tolled the time for their individual appeals. 

Bacashihua v. Merit Systems Protection Board, 811 F.2d 1498 (Fed. Cir. 1987) 

The Court affirmed the Board's finding that the petitioner's appeal of her first removal from the 

Postal Service was untimely filed. The Court agreed that the petitioner's failure to timely file was based 

solely on her decision to pursue her contractual grievance of her removal beyond step 3 to arbitration, 

and not upon any failure of the Postal Service properly to inform her of her right to appeal both to the 

Board and through the grievance procedure. 
APPENDIX E SPECIAL 

STUDIES 
The following summaries of special study reports released by the Board during Fiscal Year 1987 

highlight the findings and recommendations in those studies. The reports summarized include two 

of the five studies which constitute the annual oversight review of the significant actions of the Office 

of Personnel Management, the annual analysis of MSPB appeals decisions, and a review of Board and 

court decisions involving the authority of the Special Counsel to remedy prohibited personnel 

practices. 

1. Reports on the Significant Actions of the Office of Personnel Management (OPM). During Fiscal Year 

1987 the Board examined several important civil service issues related to the significant actions of 

OPM. The results are being published in five separate reports. Two reports, one dealing with hiring 

entry-level professional and administrative career employees and blue-collar apprentices and the 

other with the RIF regulations which became effective in February 1986, were released during the 

fiscal year and are summarized below. Brief comments are provided about the other three reports, 

which are to be issued in Fiscal Year 1988. 

a. In Search of Merit: Hiring Entry-Level Federal Employees. This report is the most recent followup to the Board's earlier evaluations of how the Federal Government has selected candidates for 

entry-level positions since the abolishment of the Professional and Administrative Career Examination 

(PACE). It examines: (1) entry-level hiring for 118 occupations formerly covered by the PACE; and (2) 

a new examination for apprentices in various trades and crafts occupations. 

Before its elimination, the PACE was the primary competitive examination which per-miffed the 

ranking and consideration of hundreds of thousands of applicants for Federal professional and 

administrative career (PAC) entry-level positions. Because of allegations that the PACE adversely 

affected certain racial and ethnic groups, however, OPM abolished it under a consent decree in 

1982. 

A Schedule B (excepted service) PAC appointment authority, under which agencies develop and 

use their own recruiting and selection procedures, was established by OPM to fill the gap left by the 

abolishment of the PACE. The Schedule B PAC authority covers positions in former PACE occupations 

only at GS grades 5 and 7, and, until recently, advancement beyond GS-7 required formal selection 

under OPM procedures for a GS-9 competitive service position. 

As noted in earlier Board reports on this subject, the "competition" has been largely pro forma. 

The current report finds that through June 1986, approximately 97 percent of all Schedule B PAC 

employees sought by agencies were selected for the GS-9 competitive service positions. On May 

7, 1987, the President issued an Executive Order authorizing noncompetitive conversion of Schedule B 

employees to GS-9 competitive service positions if the employee's performance warrants it, and if the 

employee meets minimum qualifications and other requirements established by OPM. 

The special Schedule B PAC authority has been exempted by OPM from even those procedures 

established for the excepted service, and it permits the use of selection procedures that are 

prohibited for competitive service hiring. Thus, Schedule B PAC employees are recruited, 

considered, and hired under procedures that do not ensure the same uniform degree of merit that 

is sometimes required for other excepted service hiring and is mandatory for competitive service 

hiring. Since employees hired under this Schedule B PAC authority may now be converted 

noncompetitively into the competitive service, the Board is concerned that hiring under this authority 

may be inconsistent with Merit System Principle 1. This principle states: "(R)ecruitment should be from 

qualified individuals from appropriate sources in an endeavor to achieve a work force from all 

segments of society, and selection and advancement should be determined solely on the basis of 

relative ability, knowledge, and skills, after fair and open competition which assures that all receive 

equal opportunity." 

From the perspective of merit systems integrity, it is unfortunate that relatively little progress has 

been made in developing alternative examinations in the years since the PACE was abolished. 

Alternative examinations have been developed for only 16 of the occupations formerly covered by 

the PACE. 
While OPM estimates that these 16 occupations collectively accounted for approximately 60 percent 

of annual entry-level hiring under PACE, there are still over 100 occupations, and a substantial 

percentage of anticipated hiring needs, without a formal competitive examination vehicle. 

This report recommends that OPM accelerate its examination development process to permit 

elimination of this special Schedule B authority in a timely manner. It also recommends that OPM develop 

a reasonable and firm timetable for accomplishing this goal and that, pending its accomplishment, 

OPM take steps to bring the recruitment and selection procedures of the Schedule B PAC authority into 

closer alignment with competitive service procedures. 

In contrast to the concerns expressed over entry-level PAC hiring, the report finds that early results of 

the use of a new blue-collar apprentice examination suggest that the examination is a success. The 

examination was developed by OPM and the Department of the Navy, was tested in 1983, and placed 

into use in March 1984. The examination is administered to applicants for the Federal Government's 

four-year apprentice program. Between 1,000 and 2,000 new apprentices are hired each year. 

Results from the first full year of use of the examination indicate better-quality selections, plus general 

improvements in the representation of women and minorities among selections. The second full year 

statistics reflect continued general improvement in the representation of women and minorities. Too 

little time has passed to tell whether an unacceptably high turnover rate of new hires under the 

examination used previously will be reduced. If continuing validation testing upholds the early results, 

this new apprentice examination can be considered successful. 

b. Reduction-in-Force: The Evolving Ground Rules. This report examines the RIF regulations 

which became effective in February 1986, and explains what the regulations changed and what those 

changes mean to Federal agencies, employees, and the merit systems. 

The revised regulations are part of a larger OPM plan to make performance appraisal a key tool in 

Federal personnel management. A paramount goal of the regulations is to give RIF a stronger merit 

basis by enhancing the role of performance as an employee retention factor. The new regulations 

provide additional credit for performance by increasing the weight given to performance ratings in 

relationship to seniority and allowing credit for the three most recent annual performance ratings. 

Other provisions of the regulations place new restrictions on the establishment of competitive 

areas and competitive levels, limit the number of grades an employee can fall back in displacing 

other employees at lower grades, eliminate appeal rights when an employee suffers no loss of grade 

or pay, and exclude from RIF procedures employee downgrades caused by a gradual erosion of 

duties. 

Overall, the new regulations are expected to decrease the disruption to agency programs and to 

the workforce which are often associated with RIF actions. They increase the likelihood that 

agencies will be able to keep their better performing, but less senior, employees. Higher performing 

employees gain the opportunity to have their performance make a real difference in determining 

how a RIF will affect them. Fewer employees will be affected by a RIF since the "ripple" effect 

associated with RIF in previous years is moderated by the new regulations. 

The study finds that most agency managers view the changes as conceptually sound, but are 

concerned that the new regulations: (1) increase the administrative burden of conducting a RIF; 

and (2) depend on the fairness and accuracy of individual performance plans and appraisals of 

employees. The report notes that the regulations do increase the administrative workload, primarily 

because of the new requirements for considering performance plans and performance ratings. It 

also finds that the dependence on performance appraisals is a key potential problem, since there is 

evidence, both from OPM and from analyses conducted by GAO and MSPB, that agencies have 

problems with the operational implementation of their performance appraisal systems. 
The report states that correction of the problems in implementation of performance appraisal 

systems is important to all aspects of Federal personnel management, including RIF. It concludes that, if 

properly applied, the revised regulations will strengthen the merit bases of RIF. 

c. The Performance Management and Recognition System: Linking Pay to Performance. This study 

examines the results, to date, of the Government's linkage between pay and performance for Federal 

managers and supervisors covered by the Performance Management and Recognition System 

(PMRS). 

d. Performance Management in the Federal Government. This report focuses on performance 

management programs covering both General Schedule (GS) and Performance Management and 

Recognition System (PMRS) employees in the Federal Government. The report addresses the 

underlying concepts of the system and the perceptions of those covered by the system, and relies on 

responses to the 1986 MSPB Merit Principles Survey of Federal employees. 

e. Expanded Temporary Appointment Authority: New Management Flexibilities. This report 

examines the impact on agency staffing and the merit system of the expanded authority to make 

and extend temporary appointments, which was granted by OPM at the end of 1984. Under the 

expanded authority, agencies can make temporary appointments to positions through GS-12 for up to 

4 years. 

2. Study of MSPB Appeals Decisions for Fiscal Year 1986. This report provides detailed information on 

appeals decisions issued by the Board and administrative judges in the Regional Offices in Fiscal Year 

1986. Information is included on addendum cases arising from appeals which have previously been 

decided, i.e., attorney fees, enforcement, and remands. In addition to total numbers, various 

breakdowns are provided by type of appeal, agency, outcome, case processing time, and MSPB 

regional jurisdiction. Fiscal Year 1986 appeals decisions are placed in the context of decisions issued 

during the four previous fiscal years (FY1982-1985) in order to develop a five-year trend analysis. 

3. The Office of Special Counsel: Judicial Views on Prosecution of Prohibited Personnel Practices. This 

monograph reviews Board and court decisions issued in the first decade of the Civil Service Reform Act of 

1978 (CSRA) which involve the authority of the Office of Special Counsel (OSC) to remedy prohibited 

personnel practices. The review relies primarily on the five cases in which Federal Circuit Courts of Appeal 

have reviewed decisions of the Board in actions brought by the Special Counsel. In addition, the 

review includes a recent series of important cases decided by the U.S. Court of Appeals for the District 

of Columbia Circuit, concerning OSC jurisdiction over claims not appealable to the Board. 

The Office of Special Counsel was established by the CSRA with enforcement of the prohibited 

personnel practices statute as its principal responsibility. That statute applies to employees with authority 

to take or recommend "personnel actions" and prohibits the use of such authority for various 

illegitimate purposes which are inconsistent with merit principles. The definition of "personnel action" is broadly inclusive, encompassing many personnel actions which are not directly appealable 

to the Board by the employee involved. 

To date, only a handful of Board decisions in Special Counsel cases have triggered judicial review. 

While the CSRA authorizes the Special Counsel to bring several types of actions, court decisions 

have issued only in appeals from "corrective action" and "disciplinary action" orders. In a corrective 

action, a final Board order is sought to require an agency to correct a prohibited personnel practice. 

A disciplinary action asks the Board to impose disciplinary sanctions on employees who have committed 

prohibited personnel practices or certain other violations within OSC's jurisdiction. 

The five cases reviewed in the monograph involve both substantive and procedural issues. In 

Frazier v. Merit Systems Protection Board the court resolved key questions regarding the intended 

roles of the Special Counsel and the Board under the corrective action provisions of the CSRA. The 

court agreed with the Board that the adjudicatory role is exclusively the Board's, that OSC has the 

burden of proving the existence of the alleged prohibited personnel practice by a preponderance of 

the evidence, and that an evidentiary hearing may appropriately be held to resolve factual disputes. 
Frazier is the only reported court decision in an appeal from a Board decision on a Special Counsel 

corrective action request. The other four court decisions all involved appeals from Board decisions in 

Special Counsel disciplinary actions brought against individual employees. 

In Homer v. Merit Systems Protection Board, the Director of OPM challenged the Board's broad 

interpretation of the OSC's authority to investigate and prosecute an employee's alleged violation of 

a civil service law, rule, or regulation where the violation did not relate to personnel practices, merit systems abuses, or other matters specifically made subject to OSC jurisdiction. The court reversed the 

Board, and the result is to leave the policing of ethical violations by high level managers, if not 

committed in the course of personnel administration, to the agency and OPM. 

In Filiberti v. Merit Systems Protection Board, the Board invoked its compliance authority in 

devising a new penalty to prevent the circumvention of the sanction originally imposed in a disciplinary 

action brought by the Special Counsel. The court reversed, finding that the Board's enforcement 

authority would not permit it to extend its sanctioning authority beyond the penalties specifically 

permitted by statute. 

In both Starrett v. Special Counsel and Harvey v. Merit Systems Protection Board, the Board found 

that the adverse personnel action was a reprisal against an employee who engaged in a protected 

activity - disclosing information to the press in Starrett, and bringing a complaint to the Special 

Counsel in Harvey. In each case the Board relied primarily on testimony by the respondent that he 

did not believe the employee's allegations and relied on this belief, in part, in taking the action. The 

courts reversed the Board in these cases, ruling that acting on a belief in the inaccuracy of the 

contents of a protected disclosure is not the same as acting to punish the fact of the disclosure. 

Thecourts' purpose appears to have been to protect the supervisor from discipline for an adverse 

action based on a reasonable belief that the employee's allegations were false. The effect of the 

decision is to ensure that supervisors are not disciplined for good faith conduct. 

The monograph notes that because of their small number, the court decisions in the Special Counsel 

corrective and disciplinary action cases do not support many generalizations. However, the cases 

agree in finding a quasi-prosecutorial role for the Special Counsel, whether in seeking agency 

correction of prohibited personnel practices or in seeking discipline of supervisors responsible for their 

commission. The courts have shown a willingness to read OSC authority to remedy prohibited personnel 

practices broadly, while rejecting an expansive interpretation of that authority with respect to other 

civil service related matters. In the actions alleging reprisal for protected activity, distinguishing 

retaliatory from legitimate motivation has presented a difficult challenge. 

A series of cases recently decided by the U.S. Court of Appeals for the District of Columbia Circuit 

have articulated a broad jurisdictional basis for Special Counsel investigations into allegations of 

prohibited personnel practices. The plaintiffs in these cases were all seeking to have the Federal 

courts exercise jurisdiction over claims regarding personnel actions which were not appealable to 

the Board. The courts' dismissals for lack of jurisdiction suggest strongly that OSC can and should 

investigate matters as diverse as allegations of incorrect classification or performance decisions, or 

allegations of unfair or arbitrary grievance or reassignment determinations, since such decisions, if 

they are arbitrary or incorrect, can constitute prohibited personnel practices. 

The monograph concludes that if the Special Counsel begins to rely upon the rationale behind the 

recent series of rulings in the D.C. Circuit cases, and if that reliance receives support from the 

Board and its reviewing courts, the role of the Special Counsel will have been enlarged, while 

judicial oversight of Executive Branch personnel decisions will have been more narrowly 

circumscribed.