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iii Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Foreword

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

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

(FY) 2015.

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

DeeAnn Batten, Ph.D.

Performance Improvement Officer

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

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

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2015 program performance results (as required under the 

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

Performance Report and Annual Performance Plan (APR-APP) for FY 2015-2017. Financial 

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

2015. MSPB’s Annual Reports, AFRs, APR-APPs, and Strategic Plans are posted on MSPB’s 

website, www.mspb.gov, when they are released. 

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

listservs, follow us on twitter (@USMSPB), or download the MSPB app (for Android or iPhone). 
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v Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Table of Contents

 Page

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

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

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

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

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

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

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

Fiscal Year 2015 in Review ............................................................................................ 9

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

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

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

The Significant Actions of the Office of Personnel Management..................................................... 10

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

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

Legislative and Congressional Relations Activity.................................................................................. 11

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

Significant External Trends and Issues................................................................................................... 13

Case Processing Statistics for FY 2015 .........................................................................15

Summary of Cases Decided by MSPB.................................................................................................... 15

Cases Processed in the Regional and Field Offices.............................................................................. 16

Cases Processed at Headquarters............................................................................................................. 26

Significant Board Decisions and Court Opinions Issued in FY 2015......................... 35

Significant Board Decisions Issued in FY 2015 .................................................................................... 35

Significant Opinions Issued by the U.S. Courts of Appeals in FY 2015........................................... 45

Significant Opinions Issued by the U.S. Supreme Court in FY 2015................................................ 47

Significant Board Decisions and Court Opinions Issued in Early FY 2016..................................... 48

Summary of Merit Systems Studies Activity in FY 2015 ............................................. 49

Summaries of Reports Released in FY 2015.......................................................................................... 50

Summaries of Reports Released in Early FY 2016 ............................................................................... 51

FY 2015 Issues of Merit Newsletter Topics .............................................................................................. 51

The Merit Systems Studies Research Agenda for FY 2015 - 2018..................................................... 51

2016 Merit Principles Survey (MPS)........................................................................................................ 51

MSPB’s Cloud-based Survey Capability.................................................................................................. 51

Significant Actions of the U.S. Office of Personnel Management in FY 2015............ 53

Factors Affecting the U.S. Office of Personnel Management ............................................................ 53

New Significant Actions of the U.S. Office of Personnel Management........................................... 54

OPM Significant Actions Underway or Completed ............................................................................. 60

Financial Summary.......................................................................................................61

List of Abbreviations and Acronyms ........................................................................... 63
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1 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2015 ANNUAL REPORT

MESSAGE FROM THE CHAIRMAN

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

Protection Board (MSPB) for Fiscal Year (FY) 2015. The last few years have been both the most 

challenging in MSPB’s history and among the most rewarding. Between FY 2012-2015, MSPB 

issued decisions in 61,019 cases, including initial appeals and PFR decisions issued in FY 2014 and 

FY 2015 for approximately 32,770 furlough cases.

1

I am proud to report that as of January 31, 2016, we have completed adjudication of approximately 

97% of these furlough initial appeals. Even with the unprecedented number of decisions issued in 

2014 and 2015, the percent of MSPB’s decisions left unchanged by the Courts remained steady at 96

percent for both years. In 2015, MSPB completed the revision to its adjudication regulations, a 

process that began in FY 2011. We also increased the number of mediators available in the Mediation 

Appeals Program (MAP), which allows this option for resolving disputes available to more interested 

parties and for the disputes to be resolved faster. More information about MSPB’s adjudication 

activities in 2015, including summaries of significant decisions, are included in this report.

In FY 2015, MSPB issued three study reports: Veterans’ Employment Redress Laws in the Federal Civil 

Service; The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs; and What is Due 

Process in Federal Civil Service Employment. In addition, MSPB completed its studies research agenda for 

FY 2015-2018, planned administration of the 2016 Merit Principles Survey and published three 

newsletter editions and four online articles, including one timely article on adverse actions.

Summaries of these reports, and one report issued in early FY 2016 on Senior Executive Service 

(SES) training, and other studies activities are included in this Annual Report. 

These results reflect the dedication, expertise, and commitment of MSPB’s employees. Despite the 

challenges we have faced in the last few years, MSPB’s 2015 Federal Employee Viewpoint Survey

(FEVS) results improved markedly. The percent of positive responses increased for almost every 

question on the survey, including those related to perceptions of supervisors and managers. MSPB 

ranked 8th —and was 2nd most improved—in employee engagement compared to other small 

agencies. In addition, MSPB was ranked 8th in 2015 and was the 5

th most improved among small

agencies in the Best Places to Work (BPTW) Rankings released by the Partnership for Public Service 

in December 2015.

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

MSPB. This law gives the Secretary of the Department of Veterans Affairs (VA) more flexibility in 

removing or demoting VA SES personnel and changes the way MSPB processes VA SES appeals. 

The law stipulates that the MSPB Administrative Judge (AJ) must issue a decision on a VA SES case 

within 21 days of the filing of the appeal with MSPB. In addition, the decision issued by the AJ is 

final, with no additional appeal or review permitted by the Presidentially appointed and Senate 

confirmed Board Members at headquarters, or by the Courts. This is a review right afforded to other 

Federal executives and employees guaranteed by Federal statute and legal precedent. In our 

experience with the VA SES cases we have received so far, the MSPB AJs assigned to the case, and 

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

 

1

In FY 2013, MSPB received more than 32,400 furlough appeals as a result of governmentwide sequestration.
2 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

to meet the strict 21-day deadline. On May 13, 2015, I submitted testimony to the Senate Veterans 

Affairs Committee on a bill that would permit the VA Secretary to revoke bonuses paid to 

employees involved in the waiting list manipulations (S. 627). On June 24 and September 16, 2015, I 

provided testimony to the same committee to clarify civil service due process requirements as they 

relate to proposed legislation expanding the VA SES appeals procedures to all VA General Schedule 

(GS) employees (S. 1082; S.1117; and H.R. 1994). 

Despite our successful year, MSPB must be prepared to face external challenges such as the impact 

of recent and proposed changes in law and jurisdiction, changes in Federal workforce demographics, 

and possible reductions in Federal appropriations in FY 2018 and beyond (including the possible 

return of sequestration). These changes may affect our appeals workload beginning in FY 2016. 

These factors also emphasize the importance of our merit systems studies and Office of Personnel 

Management review functions to ensure that the workforce continues to be managed under the 

merit principles and free from PPPs. 

Internally, approximately 20 percent of MSPB employees and about one-third of our AJs are eligible 

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

resources in FY 2014 and FY 2015, and stabilized those resources in FY 2016. These appropriations

allowed us to make a necessary increase in the number of on-board employees at the end of FY 

2015 by 12 percent over the number on board at the end of FY 2013. These additional resources 

were essential to our ability to adjudicate furlough and non-furlough cases in an efficient manner, 

and simultaneously perform our other statutory and support functions including adjudication of VA 

SES cases. We also bid a fond farewell to Vice Chairman Anne M. Wagner in February 2015. On 

July 8, 2015, the President nominated Mark P. Cohen as a Board Member to be designated Vice 

Chairman. The nomination was referred to the Senate Committee on July 8, 2015.

The overwhelming influx of furlough appeals required considerable changes and improvements to 

our processes and to our IT systems and infrastructure. It also emphasized the importance of our 

plan to modernize our processes by shifting from paper to electronic adjudication and records 

management. We also need a modern survey capability that ensures flexible survey design and secure, 

cloud-based Governmentwide administration to support our merit systems studies and customer 

service survey needs effectively and efficiently. Unfortunately, we experienced an IT outage in late 

June 2015 resulting in the loss of our virtual IT environment and employee working and archived 

documents. More information about the outage and its impact can found later in this report and in 

the MSPB APR-APP for FY 2015-2017. MSPB will continue to consider internal IT operations and 

external IT issues in other agencies (such as recent data breaches) and recent changes in 

Governmentwide IT requirements, as applicable, to ensure we have a stable infrastructure to meet 

our needs and to implement our modernization efforts effectively.

As always, our success in FY 2015 required the combined efforts of every MSPB office and 

employee. Their expertise and dedication is without equal and Board Member Robbins and I are 

proud to work with them to achieve our mission.

Susan Tsui Grundmann,

Chairman
3 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

INTRODUCTION

This U.S. Merit Systems Protection Board (MSPB) Annual Report for FY 2015 includes summaries 

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

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

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

2 The report 

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

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

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

significant activities or events since the end of FY 2015, the report includes updated information as 

a service to MSPB’s stakeholders. 

About MSPB

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

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

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

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

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

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

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

actions.

3 The CSRA also codified for the first time the values of the Federal merit systems as the 

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

personnel practices (PPPs) that were proscribed because they were contrary to merit system values.4

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

variety of other laws.5

MSPB’s Mission and Vision

Mission: 

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

free of Prohibited Personnel Practices.

Vision:

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

providing excellent service to the American people.

 

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

prohibited under 5 U.S.C. § 1204(h)).

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

regulations, or the implementation of such regulations, would require an employee to commit a prohibited personnel practice. Pursuant to 5 U.S.C. § 

1206, MSPB also is responsible for annually reviewing and reporting on OPM’s significant actions.

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

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

Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act (WPA), Pub. L. No. 101-12, 103 Stat. 16; The Whistleblower 

Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199; The Veterans Access, Choice and Accountability Act of 2014, Pub. L. No. 113-

146; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 5 C.F.R. § 1201.3.
4 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Board Members

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

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

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

SUSAN TSUI GRUNDMANN

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President Barack 

Obama to serve as a Member and Chairman of the MSPB on July 

31, 2009. She was confirmed by the U.S. Senate on November 5, 

2009, and sworn in on November 12, 2009. Chairman 

Grundmann’s term expires on March 1, 2016. 

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

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

Federal workers nationwide and is affiliated with the International 

Association of Machinist and Aerospace Workers. At NFFE, she 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Georgetown University Law Center.

ANNE M. WAGNER

Vice Chairman

November 2009 to February 28, 2015

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

as a Member of the MSPB with the designation of Vice Chairman on 

July 31, 2009. Her nomination was confirmed by the U.S. Senate on 

November 5, 2009, and she was sworn in November 12, 2009. 

Although Ms. Wagner’s term expired on March 1, 2014, she continued

to serve in her position until March 1, 2015, in accordance with 

MSPB’s governing statute, which specifies that a member may remain 

on the Board for a period of one additional year, or until a successor is 

confirmed, whichever occurs first.
5 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Ms. Wagner came to the MSPB after serving as General Counsel of the Personnel Appeals Board of 

the U.S. Government Accountability Office (GAO). Prior to that, Ms. Wagner was appointed by the 

U.S. Comptroller General to serve a five-year statutory term as a Member of the GAO Personnel 

Appeals Board. Ms. Wagner began her career as a staff attorney in the Office of the General Counsel 

of the General Services Administration, where she primarily handled labor and employment issues. 

From there, she went on to become an Assistant General Counsel for the American Federation of 

Government Employees (AFGE), AFL-CIO, the largest Federal sector labor organization 

representing more than 600,000 Federal and District of Columbia government employees. In her 

nearly 20 years with AFGE, she led precedent-setting litigation and handled cases arising under the full 

array of laws governing Federal employment. Ms. Wagner graduated from the University of Notre 

Dame and received her J.D. from the George Washington University, National Law Center. She is 

admitted to practice law in the District of Columbia, Maryland, and Illinois as well as before various 

Federal Courts, including the U.S. Supreme Court.

MARK A. ROBBINS

Member 

May 2012 to Present

Mark A. Robbins was nominated by President Barack Obama to 

serve as a Member of the MSPB on December 5, 2011. He was 

confirmed by the U.S. Senate on April 26, 2012. Mr. Robbins' term 

expires on March 1, 2018.

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

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

capacity, Mr. Robbins worked to certify elections systems and 

maintain information on the best practices of conducting elections. 

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

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

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

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

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

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

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

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

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

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

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

of the National Academy of Public Administration.

MSPB Offices and Their Functions

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

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

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

FY 2014 and 2015 supported an increase in the number of positions on-board at the end of FY 

2015 to 220, a 12 percent increase over the 196 positions on-board at the end of FY 2013. Our 

appropriations for FY 2016 supported the retention of these resources.
6 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

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

Executive Director.

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

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

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

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

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

Environmental Protection Agency (EPA).

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

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

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

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

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

advice on legal issues to the Board.

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

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

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

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

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

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

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

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

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

MSPB’s managers and supervisors.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

plans and directs audits and investigations. 

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

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

out its administrative and research responsibilities.
7 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

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

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

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

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

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

responsible for coordinating MSPB’s performance planning and reporting functions required by the 

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

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

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

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

issuing fair, well-reasoned, and timely initial decisions.
8 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

MSPB Organizational Chart
9 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

FISCAL YEAR 2015 IN REVIEW

Adjudication

In FY 2015, MSPB processed a new record number 

of 28,509 cases. This was a 63 percent increase over 

the record number of 17,466 cases processed in FY 

2014.

6

MSPB’s AJs in the regional and field offices issued 

initial decisions in 25,367 cases, a new record, and a 

55 percent increase over the number processed in 

2014. To put this into context, Figure 1.1 shows the 

number of initial appeals received in FY 2013, and 

the number of initial appeals processed in FY 2014 

and FY 2015 compared to the average number of 

appeals received and processed for 2008-2012.

The initial appeals processed in the regional and 

field offices included 19,949 individual furlough 

initial appeals. By the end of FY 2015, MSPB’s 

regional and field offices processed 93 percent of 

the furlough initial appeals filed in FY 2013, and 70 

percent of the non-furlough initial appeals workload. As of January 31, 2016, MSPB has issued 

decisions on 97 percent of furlough cases. In FY 2015, the regional and field offices also issued 

decisions in five cases filed by Senior Executive Service (SES) employees from the Department of 

Veterans Affairs under the Veterans’ Access, Choice, and Accountability Act. One of these cases has 

been appealed to the Court of Appeals for the Federal Circuit. Thus far, in FY 2016, MSPB has three 

decisions on VA SES cases.

MSPB’s Board Members at headquarters (HQ) processed a record number of 3,120 cases, almost 

three times the 1,101 cases processed in FY 2014. Of the 2,963 PFR cases processed at HQ, 2,137 

were PFRs of individual furlough initial appeals. MSPB continued to provide alternative dispute 

resolution options to its customers including the Mediation Appeals Program (MAP). MSPB expanded 

the number of mediators in FY 2015, making this program more accessible to parties who desire to 

resolve their disputes through mediation. MSPB also completed the process of updating its regulations 

(see the next section). Information about whistleblower cases is available in MSPB’s APR-APP for FY 

2015-2017 in accord with the Whistleblower Protection Enhancement Act of 2012.

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

section entitled “Case Processing Statistics for FY 2015,” starting on page 15. Summaries of significant 

MSPB decisions, and opinions issued by the U.S. Court of Appeals and the U.S. Supreme Court are 

included in the section entitled “Significant Board Decisions and Court Opinions Issued in FY 2015,” 

starting on page 35. This section also includes summaries of selected significant Board decisions and 

Court opinions issued in early FY 2016 for the convenience of MSPB’s stakeholders.

7

 

6 A large portion of the cases processed in both years were for furlough appeals filed in FY 2013.

7 Although we may include summaries of significant cases from early FY 2016 for the benefit of our stakeholders, case processing 

statistics include only cases processing for FY 2015.

Figure 1.1: Comparative Data on Number of Initial Appeals 

Received and Processed

(Not including addendum appeals.)

38,208

6,247

15,925

24,940

6,228

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

2013 Initial

Appeals Received

Average Appeals

Received 2008-

2012

2014 Initial

Appeals

Processed

2015 Initial

Appeals

Processed

Average Cases

Processed 2008-

2012
10 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

MSPB Regulations

MSPB published its final regulations covering jurisdiction on January 28, 2015, concluding a process

of overhauling MSPB’s regulations that began in 2011. No further changes to MSPB regulations 

were proposed or implemented in FY 2015.

Merit Systems Studies

In FY 2015, MSPB approved and published three new merit system study reports on veterans’ 

employment redress laws, the impact of recruitment strategy on fair and open competition, and due 

process in the Federal civil service. MSPB also issued three editions of its Issues of Merit (IoM)

newsletter, four online articles and finalized its research agenda for FY 2015-2018. In addition, MSPB 

hired a contractor to program and implement the next Merit Principle Survey (MPS), scheduled for

administration in mid-2016 to over 120,000 Federal employees. Summaries of FY 2015 MSPB merit 

systems study reports, IoM newsletter topics, and other merit systems studies activities are included in 

this report in the section entitled “Summary of Merit Systems Studies Activity in FY 2015” beginning 

on page 49. For the convenience of our stakeholders, that section also includes a summary of a merit 

systems study on SES education issued in early FY 2016.

The Significant Actions of the Office of Personnel Management

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

OPM to ensure that these actions conform with MSPs and do not result in PPPs. In FY 2015, 

MSPB reviewed OPM’s new significant actions including: Senior Executive Service Reform and 

Modernization; Recruitment, Engagement, Diversity and Inclusion (REDI) Initiative; and Federal 

Supervisory and Managerial Framework and Guidance. MSPB coordinated and supported a White 

House SES Advisory Group and Leadership Development Program. MSPB updated the status of 

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

significant OPM issues including the data breaches and changes in OPM Leadership. More 

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

report, beginning on page 53.

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

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

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

promote better management practices, and strengthen employee engagement. MSPB outreach also 

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

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

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

provide value to the taxpayer.

In FY 2015, MSPB staff conducted 144 outreach events with customers, stakeholders, and sister 

agencies on its adjudication and merit systems studies work, and on the merit system, MSPs, and 

PPPs. MSPB staff made presentations to OPM, the Federal Executive Institute, and to management, 

union, and affinity groups. Several MSPB staff participated in live and taped interviews with Federal 

News Radio. MSPB staff members were invited to present at the Federal Dispute Resolution 

Conference, Federally Employed Women National Training Program, and the Federal Asian Pacific 

American Council National Leadership Training Program.
11 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

MSPB’s adjudication and studies work, and other activities involving MSPB, were cited in at least 

115 different print and online sources including wire services, professional and trade publications, 

newspapers, and other media. MSPB study reports were cited in a GAO report and in GAO 

testimony on Federal employee engagement, a GAO report on using the probationary period to 

manage poor performers, and an OPM white paper on how to engage Federal employees. The 

MSPB study on due process was also cited by Representative Mark Takano in testimony on S.1994.

International Activities

During FY 2015, MSPB hosted visitors from other countries to educate them on the organization of 

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

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

delegations from China and from the Republic of Turkey to provide an overview of the Federal civil 

service. MSPB staff also provided information to a delegation from Japan to discuss the 

employment and advancement of women in the Federal workforce.

Legislative and Congressional Relations Activity

Nomination of New Board Member. On July 8, 2015, President Obama nominated Mark P. 

Cohen, Principal Deputy Special Counsel, U. S. Office of Special Counsel, to be a member of the 

MSPB, with the intent to appoint him as Vice Chairman. Mr. Cohen would replace former MSPB 

Vice Chairman Anne M. Wagner, whose term expired on March 1, 2014. If confirmed, Mr. Cohen’s

term would expire on March 1, 2021.

Congressional Activity. Chairman Grundmann testified at a congressional hearing to examine 

employee misconduct and the tools available to Federal agencies to address misconduct conducted 

by the House Committee on Oversight and Government Reform on June 10, 2015. At the request 

of the Senate Committee on Veterans’ Affairs, Chairman Grundmann submitted statements for the 

record for three congressional hearings. For a hearing held on May 13, 2015, she submitted a 

statement for the record, which presented her views on S. 627, a bill that would require the Secretary 

of Veterans Affairs to revoke bonuses paid to employees involved in electronic wait list 

manipulations. On June 24, 2015, her statement covered the impact of two bills (S. 1082), the 

Department of Veterans Affairs Accountability Act of 2015 and S. 1117, (Ensuring Veteran Safety 

through Accountability Act of 2015). On September 16, 2015, her statement included her views on 

S. 290, (increasing the Department of Veterans Affairs Accountability to Veterans Act of 2015) and 

S. 1856 (providing for the suspension and removal of employees of the Department of Veterans 

Affairs for performance or misconduct that is a threat to public health or safety).8

As stated earlier, during the floor debate in the House of Representatives on H.R. 1994, the VA 

Accountability Act of 2015, Rep. Mark Takano (D-CA) cited the MSPB report on due process in 

support of his position on the bill.9

Legislation that Impacts MSPB or the Civil Service. In August 2014, President Obama signed 

the Veterans Access, Choice, and Accountability Act into law. Section 707 of that Act, by adding a 

new section 713 to Title 38, United States Code, made significant changes to the MSPB adjudication 

process in appeals involving senior executive service employees from the Department of Veterans 

Affairs. Specifically, Section 707 requires MSPB AJs to fully adjudicate such appeals within 21 

 

8 Chairman Grundmann’s testimony is available on MSPB’s website at www.mspb.gov. 

9 https://www.congress.gov/congressional-report/114th-congress/house-report/225/1
12 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

calendar days from the date on which the appeal is filed. If the MSPB AJ does not issue a decision 

within 21 days, the Department of Veterans Affairs’ personnel action becomes final. Also, unlike 

title 5 of the United States Code, the Act prohibits appeals of the MSPB AJ’s decision to the full 

Board at MSPB headquarters in Washington, D.C. or to a federal court. Though the Act may have 

been widely perceived to make the disciplinary process more efficient from the Department of 

Veterans Affairs standpoint, it should be noted that it made very little change to substantive law.

Indeed, in these appeals, the Department of Veterans Affairs is still required to prove its charges and 

appellants may still assert affirmative defenses. It should be noted that Section 707 is currently the 

subject of a constitutional challenge in the United States Court of Appeals for the Federal Circuit. 

See Helman v. Dep't. of Veterans Affairs, Case No. 15-3086 (Fed. Cir. 2015).

Recent legislation introduced in the House and Senate would expand a nearly identical MSPB 

adjudication process to Department of Veterans Affairs GS employees (S. 1082; S. 1117; and H.R. 

1994). If either of the pieces of legislation were to become law, and the above-referenced MSPB 

adjudication process becomes standard for a significant number of federal employees, the effects on 

MSPB’s operations would be dramatic, and MSPB would likely need to consider operational changes 

in order to meet the strict adjudication deadlines. As stated earlier, Chairman Susan Tsui 

Grundmann provided testimony to the Senate Committee on Veterans’ Affairs on the potential 

effect this legislation will have not only on MSPB’s operations, but also on due process implications 

with respect to covered federal employees. More information about the potential impact of this 

legislation on MSPB is contained in the section on changes in law and jurisdiction.10 11

Internal Management Activities and Challenges

This information is provided as context for the other information contained in the Annual Report. 

More detailed information about MSPB’s internal issues and challenges can be obtained in the 

MSPB APR-APP for FY 2015-2017. MSPB’s main internal challenges include human capital issues 

and ensuring a stable, secure and viable IT infrastructure to support current mission and 

administrative functions and its modernization efforts, which include implementing MSPB’s eAdjudication initiative and obtaining a secure, cloud-based survey capability. 

Human Capital Issues. Fortunately, MSPB’s FY 2014 and FY 2015 appropriations enabled MSPB 

to increase the number of on-board employees to 220 at the end of FY 2015 (a 12% increase over 

the 196 positions filled at the end of FY 2013). We appreciate Congressional support of those 

requests, and our enacted appropriations for FY 2016, which will support retaining this level of 

staffing. Even so, over 20 percent of MSPB employees, including almost one-third of MSPB AJs, are 

eligible to retire in the next 2 years. Although MSPB has been able to fill these positions with wellqualified candidates, it takes 2-3 years for agency professionals, including AJs, to reach journey-level 

performance. MSPB has commenced a sustained strategic human capital planning process focused 

on its highest priority issues, including the high percentage of employees eligible to retire. MSPB 

currently has two Board Members – Chairman Susan Tsui Grundmann and Member Mark A. 

Robbins. In addition, as stated earlier, the President nominated Mark P. Cohen to fill the third 

Board Member position (vacated in February 2015 by Vice Chairman Anne M. Wagner). 

 

10 In January 2016, H.R. 4358, the Senior Executive Service Accountability Act, was introduced and reported out of the House Committee on 

Oversight and Government Reform. This legislation would expand the VA SES provisions to all SES employees, Governmentwide.

11 The National Defense Authorization Act (NDAA) for FY 2016 was passed early FY 2016. The NDAA changes MSPB jurisdiction for suitability 

cases and it changes Reduction in Force (RIF) guidelines, probationary periods, and authority to delay step increases for Department of Defense 

employees. https://www.congress.gov/bill/114th-congress/senate-bill/1356/text
13 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

MSPB results from the FY 2015 Federal Employee Viewpoint Survey (FEVS) were overwhelmingly 

positive. Specifically, the FEVS showed increases in the positive responses for almost every question 

on the survey, including employees’ perceptions about having the necessary resources to do their 

jobs and improved perceptions about agency managers and leaders. In addition, MSPB ranked 8th

and had the 2nd most improved employee engagement score among small agencies in 2015. In 

addition, MSPB was ranked 8th in 2015 and was the 5th most improved among small agencies in the 

BPTW Rankings. Continued stability in funding for FY 2017 and beyond will be necessary to sustain 

the improvement in employee satisfaction necessary to improve our processes and continue to 

perform our statutory functions effectively and efficiently.

IT Infrastructure Stability and Modernization. The overwhelming volume of furlough appeals 

reinforced the need for MSPB to shift from paper to electronic appeals processing (internally and 

externally) and records management to improve efficiency and customer service. The transition to eAdjudication also supports Governmentwide initiatives on paperwork elimination, electronic records 

management, operational efficiency, effectiveness, and customer service. The e-Adjudication project 

will yield important potential improvements in efficiency, but will require a significant and sustained 

initial investment of resources. Although MSPB will be conducting the next MPS through contractor 

support, MSPB’s current ability to improve the collection of important customer service information 

and the agency’s long-term ability to conduct surveys to support merit systems studies requires 

obtaining an automated survey capability that provides flexibility in survey design and administration 

and works securely in a cloud-based environment.

Unfortunately, in late June 2015, MSPB experienced a significant disruption in its IT infrastructure 

resulting in the loss of MSPB’s virtual environment as well as the loss of employee working and 

archived documents. The IT outage also had an adverse impact on the achievement of MSPB 

objectives related to implementation of surveys of current web-users, progress on e-Adjudication, and 

progress on obtaining a secure, cloud-based survey capability essential for our studies and customer 

survey functions. We know this event was not the result of a malicious internal or external action and 

did not result in release of sensitive information or in the loss of official adjudication documents. 

However, recovering from the event, recreating the virtual environment, and re-establishing the 

confidence MSPB employees have in the IT systems and processes will take time. In moving forward 

with its IT stability and modernization initiatives, MSPB is cognizant of recent data breaches in other 

agencies, and will consider the new Federal cybersecurity requirements, as applicable.

Significant External Trends and Issues 

This information also is provided as context for the information presented in the Annual Report. 

More details on the external trends and issues affecting MSPB’s work can be obtained in the APRAPP for FY 2015-2017. The most significant external issues affecting MSPB’s ability to carry out its 

mission to protect the Federal merit systems include recent and proposed changes in law and 

jurisdiction; changes in the demographics of the Federal workforce; and anticipated Governmentwide 

budget reductions in FY 2018 and beyond (including possible sequestration). 

Changes in Law and Jurisdiction. The Veterans Access, Choice, and Accountability Act of 2014, 

referenced above, has adversely affected the processing of cases involving all other non-VA SES 

employees, including whistleblowers, veterans, and retirees who have the right to file appeals with 

MPSB. This is because MSPB has no choice but to prioritize these appeals, given the statutory 

language. Recent legislation introduced in the House and Senate expands the VA SES appeals 

procedures to the rest of the Department’s General Schedule employees (S. 1082; S. 1117; and H.R. 

1994). As it relates to MSPB, the new legislation would require that MSPB AJs issue a decision in an 
14 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

expedited manner, without affording subsequent appeal to the Presidentially appointed and Senate 

confirmed MSPB Board Members, nor to the Court. The legislation also expands MSPB appeal rights 

to tens of thousands of medical personnel in the Department of Veterans Affairs who do not 

currently have the right to appeal to MSPB. It would be very difficult for MSPB to meet the 

requirements of this legislation if it is signed into law as it is currently written.

Demographics of the Federal Workforce. Among other changes in the demographics of the 

Federal workforce, the number of Federal employees eligible to retire, and the number of 

employees being added to the retirement rolls is increasing. Retirement appeals filed with MSPB 

rose to 1,274 in FY 2015, up from 937 and 968 in FY 2013 and FY 2014, respectively. MSPB likely 

is to continue to see increases in the number of retirement appeals filed with MSPB, thus increasing 

our adjudication workload. 

Governmentwide Budget Reductions Beyond FY 2017. Furloughs conducted by agencies in 

response to budget sequestration in FY 2013 led to an historic increase in the number of appeals 

filed with MSPB. Although sequestration is not likely for FY 2016-2017, it is unclear if other 

Governmentwide budget reductions may occur in FY 2018 and beyond. In that event, budget 

reductions could mean an increase appeals involving furloughs, reductions in force (RIFs), or early 

retirements (through Voluntary Early Retirement Authority (VERA) and Voluntary Separation 

Incentive Payment (VSIP)). All of these changes also emphasize the importance of MSPB’s merit 

systems studies and OPM review functions to help ensure the workforce is managed under the 

MSPs and free from PPPs. 
15 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

CASE PROCESSING STATISTICS FOR FY 2015

Summary of Cases Decided by MSPB

Table 1: FY 2015 Summary of Cases Decided by MSPB12

Cases Decided in MSPB Regional and Field Offices 

 Appeals

1

24,940

 Addendum Cases2392

 Stay Requests335

TOTAL Cases Decided in RO/FOs 25,367

Cases Decided by Administrative Law Judges (ALJs) - Original Jurisdiction422

 Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 2,963

 Petitions for Review (PFRs) - Addendum Cases 96

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings56

 Court Remands 5

 Compliance Referrals 27

 EEOC Non-concurrence Cases 0

 Arbitration Cases 11

 Subtotal - Appellate Jurisdiction 3,108

 Original Jurisdiction610

 Interlocutory Appeals 2

 TOTAL Cases Decided by the Board 3,120

 TOTAL Decisions (Board, ALJs, RO/FOs) 28,509

1 This includes 19,949 initial decisions on initial furlough appeals filed as a result of furlough actions taken in FY 2013.

2

Includes 106 requests for attorney fees, 108 Board remand cases, 161 compliance cases, 1 court remand case, 12 requests for compensatory 

damages (discrimination cases only), and 4 requests for consequential damages.

3

Includes 31 stay requests in whistleblower cases and 4 in non-whistleblower cases.

4 Initial Decisions by ALJ. Case type breakdown: 1 corrective action brought against agency, 2 Hatch Act cases, and 19 actions Against ALJs.

5

Includes 5 cases reopened by the Board on its own motion and 1 request for reconsideration by OPM.

6Original Jurisdiction Case Type Breakdown: 6 OSC stay requests, 1 petition for rulemaking, 2 PFRs of actions against ALJs, and 1 request for 

regulation review.

 

12 Case processing statistics are provided for FY 2015 only. Even though we may provide selected summaries of Board decisions released in FY 2016, 

the 2016 decisions are not included in the case processing statistics.
16 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Cases Processed in the Regional and Field Offices

Due to the large number of initial appeals and PFRs processed in FY 2015, we are including charts 

displaying outcomes both with and without furlough cases. Pie charts without furlough appeal data 

are more comparable to similar charts from previous MSPB Annual Reports. Additional information 

may be footnoted in the charts.

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

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

Adverse Action by 

Agency3 21,565 5,733 26.58 15,832 73.42 778 4.91 15,054 95.09

Termination of 

Probationers 339 315 92.92 24 7.08 21 87.50 3 12.50

Reduction in Force 41 22 53.66 19 46.34 5 26.32 14 73.68

Performance 143 45 31.47 98 68.53 79 80.61 19 19.39

Acceptable Level of 

Competence (WIGI) 43 30 69.77 13 30.23 11 84.62 2 15.38

Suitability 65 32 49.23 33 50.77 30 90.91 3 9.09

CSRS Retirement: Legal 377 241 63.93 136 36.07 9 6.62 127 93.38

CSRS Retirement: 

Disability 5 4 80.00 1 20.00 0 0.00 1 100.00

CSRS Retirement: 

Overpayment 119 54 45.38 65 54.62 39 60.00 26 40.00

FERS Retirement: Legal 138 85 61.59 53 38.41 4 7.55 49 92.45

FERS Retirement: 

Disability 143 110 76.92 33 23.08 1 3.03 32 96.97

FERS Retirement: 

Overpayment 418 170 40.67 248 59.33 187 75.40 61 24.60

FERCCA 14 9 64.29 5 35.71 2 40.00 3 60.00

Individual Right of Action 400 271 67.75 129 32.25 80 62.02 49 37.98

USERRA 114 68 59.65 46 40.35 21 45.65 25 54.35

VEOA 228 97 42.54 131 57.46 5 3.82 126 96.18

Other4788 737 93.53 51 6.47 41 80.39 10 19.61

Total 24,940 8,023 32.17 16,917 67.83 1,313 7.76 15,604 92.24

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed

3 This includes 19,522 furlough appeals decided, 4,697 dismissed, 14,825 not dismissed, 32 settled, and 14,793 adjudicated on the merits.

3

“Other” appeals include Restoration to Duty (102), Miscellaneous (627), and additional types such as Reemployment Priority, Employment 

Practices, and others.
17 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

(Including furlough appeals)

Total Number of Appeals: 24,940

CSRS Retirement: 

Disability, (5) 0%

CSRS Retirement: Legal, 

(377) 2%

CSRS Retirement: 

Overpayment, (119) 0%

FERS Retirement: Legal, 

(138) 1%

FERS Retirement: 

Disability, (143) 1%

FERS Retirement: 

Overpayment, (418) 2%

FERCCA, (14) 0%

Indivual Right of Action, 

(400) 2%

USERRA, (114) 0%

VEOA, (228) 1%

Other, (788) 3%

Adverse Actions, 

(21,565) 86%

Termination of 

Probationers, (339) 1%

Reduction in Force, (41) 

0% Performance, (143) 1%

Acceptable Level of 

Competence, (43) 0%

Suitability, (65) 0%
18 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

(Not including furlough appeals)

Total Number of Appeals: 5,418

CSRS Retirement: 

Disability, (5) 0%

CSRS Retirement: Legal, 

(377) 7%

CSRS Retirement: 

Overpayment, (119) 2%

FERS Retirement: Legal, 

(138) 3%

FERS Retirement: 

Disability, (143) 3%

FERS Retirement: 

Overpayment, (418) 8%

FERCCA, (14) 0%

Indivual Right of Action, 

(400) 7%

USERRA, (114) 2%

VEOA, (228) 4%

Other, (788) 15%

Adverse Actions, (2043) 

38%

Termination of 

Probationers, (339) 6%

Reduction in Force, (41) 

1%

Performance, (143) 3%

Acceptable Level of 

Competence, (43) 1%

Suitability, (65) 1%
19 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3.2: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices (Including furlough appeals)

Total Number of Appeals that Were Not Dismissed: 16,917

Figure 3.2a: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices (Not including furlough appeals)

Total Number of Appeals that Were Not Dismissed: 2,092

Action or Decision 

Overturned or 

Corrective Action 

Ordered, (184) 1%

Mitigated, (18) 0%

Other, (6) 0%

Appeal Settled, (1,313) 

8%

Action or Decision 

Upheld or Left 

Undisturbed, (15,396) 

91%

Action or Decision 

Overturned or 

Corrective Action 

Ordered, (139) 7%

Mitigated, (18) 1%

Other, (6) 0%

Appeal Settled, (1,281) 

61%

Action or Decision 

Upheld or Left 

Undisturbed, (648) 

31%
20 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 919 Appeals Adjudicated on the Merits

Figure 3.3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office (Including furlough appeals)

Based on 15,604 Appeals Adjudicated on the Merits

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

by Regional/Field Office (Not including furlough appeals)

Based on 811 Appeals Adjudicated on the Merits

Action or Decision 

Overturned or 

Corrective Action 

Ordered, (184) 1%

Mitigated, (18) 0%

Other, (6) 0%

Action or Decision 

Upheld or Left 

Undisturbed, (15,396) 

99%

Action or Decision 

Overturned or 

Corrective Action 

Ordered, (139) 17%

Mitigated, (18) 2%

Other, (6) 1%

Action or Decision 

Upheld or Left 

Undisturbed, (648) 

80%
21 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Table 3: Disposition of Appeals by Agency *

Decided Dismissed1Not DIsmissed1Settled2Adjudicated2

Agency # # % # % # % # %

Department of the Navy 8,210 2,780 33.9 5,430 66.1 91 1.7 5,339 98.3

Department of the Army 4,421 1,170 26.5 3,251 73.5 138 4.2 3,113 95.8

Department of the Air Force 4,371 529 12.1 3,842 87.9 59 1.5 3,783 98.5

Department of Defense 3,642 948 26.0 2,694 74.0 54 2.0 2,640 98.0

Office of Personnel Management31,240 677 54.6 563 45.4 267 47.4 296 52.6

Department of Veterans Affairs 755 487 64.5 268 35.5 192 71.6 76 28.4

United States Postal Service 584 411 70.4 173 29.6 148 85.5 25 14.5

Department of Homeland 

Security 356 222 62.4 134 37.6 91 67.9 43 32.1

Department of the Treasury 238 111 46.6 127 53.4 33 26.0 94 74.0

Department of Health and Human 

Services 192 75 39.1 117 60.9 36 30.8 81 69.2

Department of Justice 125 96 76.8 29 23.2 17 58.6 12 41.4

Department of Transportation 115 88 76.5 27 23.5 20 74.1 7 25.9

Department of the Interior 113 70 61.9 43 38.1 29 67.4 14 32.6

Department of Agriculture 107 55 51.4 52 48.6 39 75.0 13 25.0

Social Security Administration 85 61 71.8 24 28.2 17 70.8 7 29.2

Department of Labor 53 38 71.7 15 28.3 10 66.7 5 33.3

Department of Commerce 52 32 61.5 20 38.5 14 70.0 6 30.0

Department of State 40 27 67.5 13 32.5 8 61.5 5 38.5

Department of Energy 34 22 64.7 12 35.3 8 66.7 4 33.3

Department of Housing and 

Urban Development 21 13 61.9 8 38.1 5 62.5 3 37.5

Environmental Protection Agency 18 13 72.2 5 27.8 3 60.0 2 40.0

Federal Deposit Insurance 

Corporation 18 9 50.0 9 50.0 4 44.4 5 55.6

General Services Administration 17 10 58.8 7 41.2 3 42.9 4 57.1

National Aeronautics and Space 

Administration 14 7 50.0 7 50.0 5 71.4 2 28.6

Equal Employment Opportunity 

Commission

12 9 75.0 3 25.0 3 100.0 0 0.0

Small Business Administration 11 8 72.7 3 27.3 1 33.3 2 66.7

Smithsonian Institution 10 8 80.0 2 20.0 1 50.0 1 50.0

Tennessee Valley Authority 10 4 40.0 6 60.0 1 16.7 5 83.3

Agency for International 

Development 9 4 44.4 5 55.6 0 0.0 5 100.0

Securities and Exchange 

Commission 7 4 57.1 3 42.9 2 66.7 1 33.3

*Data contain both furlough and nonfurlough appeals.

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.

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

Retirement System and the Federal Employees Retirement System.
22 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

Decided Dismissed1Not DIsmissed1Settled2Adjudicated2

Agency # # % # % # % # %

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

Government Printing Office 5 0 0.0 5 100.0 2 40.0 3 60.0

Export-import Bank of the United 

States 3 2 66.7 1 33.3 1 100.0 0 0.0

Other 3 3 100.0 0 0.0 0 0.0 0 0.0

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

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

Commodity Futures Trading 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission 2 1 50.0 1 50.0 0 0.0 1 100.0

Federal Communications 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0

Federal Housing Finance Agency 2 1 50.0 1 50.0 1 100.0 0 0.0

Judicial Branch 2 2 100.0 0 0.0 0 0.0 0 0.0

Nuclear Regulatory Commission 2 1 50.0 1 50.0 1 100.0 0 0.0

Peace Corps 2 1 50.0 1 50.0 0 0.0 1 100.0

Pension Benefit Guaranty 

Corporation 2 1 50.0 1 50.0 1 100.0 0 0.0

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

U.S. Tax Court 2 2 100.0 0 0.0 0 0.0 0 0.0

American Battle Monuments 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Broadcasting Board of Governors 1 0 0.0 1 100.0 1 100.0 0 0.0

Commission for the Preservation 

of America's Heritage Abroad 1 0 0.0 1 100.0 1 100.0 0 0.0

Committee for Purchase from 

People Who Are Blind or Severely 

Disabled

1 0 0.0 1 100.0 0 0.0 1 100.0

Election Assistance Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Labor Relations Authority 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Maritime Commission 1 0 0.0 1 100.0 0 0.0 1 100.0

Federal Reserve System 1 1 100.0 0 0.0 0 0.0 0 0.0

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.
23 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

Decided Dismissed1Not DIsmissed1Settled2Adjudicated2

Agency # # % # % # % # %

Federal Retirement Thrift 

Investment Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Government of the 

District of Columbia 1 1 100.0 0 0.0 0 0.0 0 0.0

Inter-American 

Foundation 1 1 100.0 0 0.0 0 0.0 0 0.0

International Boundary 

and Water Commission: 

U.S. and Mexico

1 0 0.0 1 100.0 1 100.0 0 0.0

Merit Systems Protection 

Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Millennium Challenge 

Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

National Archives and 

Records Administration 1 0 0.0 1 100.0 1 100.0 0 0.0

National Credit Union 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations 

Board 1 0 0.0 1 100.0 0 0.0 1 100.0

National Science 

Foundation 1 0 0.0 1 100.0 1 100.0 0 0.0

Office of Special Counsel 1 0 0.0 1 100.0 0 0.0 1 100.0

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

TOTAL 24,940 8,023 32.2 16,917 67.8 1,313 7.8 15,604 92.2

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.
24 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency*

Adjudicated1Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Department of the Navy 5,339 5,325 99.74 12 0.2 2 0.0 0 0.0

Department of the Air Force 3,783 3,777 99.84 5 0.1 1 0.0 0 0.0

Department of the Army 3,113 3,057 98.20 54 1.7 2 0.1 0 0.0

Department of Defense 2,640 2,630 99.62 9 0.3 1 0.0 0 0.0

Office of Personnel 

Management2 296 234 79.05 53 17.9 3 1.0 6 2.0

Department of the Treasury 94 94 100 0 0.0 0 0.0 0 0.0

Department of Health and 

Human Services 81 75 92.59 6 7.4 0 0.0 0 0.0

Department of Veterans Affairs 76 56 73.68 17 22.4 3 3.9 0 0.0

Department of Homeland 

Security 43 34 79.07 5 11.6 4 9.3 0 0.0

United States Postal Service 25 19 76.00 6 24.0 0 0.0 0 0.0

Department of the Interior 14 12 85.71 2 14.3 0 0.0 0 0.0

Department of Agriculture 13 11 84.62 1 7.7 1 7.7 0 0.0

Department of Justice 12 10 83.33 1 8.3 1 8.3 0 0.0

Department of Transportation 7 5 71.43 2 28.6 0 0.0 0 0.0

Social Security Administration 7 5 71.43 2 28.6 0 0.0 0 0.0

Department of Commerce 6 4 66.67 2 33.3 0 0.0 0 0.0

Agency for International 

Development 5 5 100 0 0.0 0 0.0 0 0.0

Department of Labor 5 4 80.00 1 20.0 0 0.0 0 0.0

Department of State 5 5 100 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 5 4 80.00 1 20.0 0 0.0 0 0.0

Tennessee Valley Authority 5 3 60.00 2 40.0 0 0.0 0 0.0

Department of Energy 4 4 100 0 0.0 0 0.0 0 0.0

General Services Administration 4 3 75.00 1 25.0 0 0.0 0 0.0

Department of Housing and 

Urban Development 3 3 100 0 0.0 0 0.0 0 0.0

Government Printing Office 3 3 100 0 0.0 0 0.0 0 0.0

Environmental Protection Agency 2 2 100 0 0.0 0 0.0 0 0.0

National Aeronautics and Space 

Administration 2 2 100 0 0.0 0 0.0 0 0.0

Small Business Administration 2 1 50.00 1 50.0 0 0.0 0 0.0

*

This includes both furlough and nonfurlough appeals.

1 Adjudicated on the merits, i.e., not dismissed or settled.

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

Retirement System and the Federal Employees Retirement System. 

Percentages may not total 100 because of rounding. 
25 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (Cont.)

Adjudicated1Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Armed Forces Retirement Home 1 1 100 0 0.0 0 0.0 0 0.0

Committee for Purchase from 

People Who Are Blind or 

Severely Disabled

1 1 100 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission 1 1 100 0 0.0 0 0.0 0 0.0

Department of Education 1 0 0.00 1 100.0 0 0.0 0 0.0

Federal Maritime Commission 1 1 100 0 0.0 0 0.0 0 0.0

National Labor Relations Board 1 1 100 0 0.0 0 0.0 0 0.0

Office of Special Counsel 1 1 100 0 0.0 0 0.0 0 0.0

Peace Corps 1 1 100 0 0.0 0 0.0 0 0.0

Securities and Exchange 

Commission 1 1 100 0 0.0 0 0.0 0 0.0

Smithsonian Institution 1 1 100 0 0.0 0 0.0 0 0.0

TOTAL 15,604 15,396 98.7 184 1.2 18 0.1 6 0.0

1 Adjudicated on the merits, i.e., not dismissed or settled.

 
26 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Cases Processed at Headquarters

For case outcomes, we have provided data both with and without furlough cases. The data without 

furlough cases is most comparable to case processing data in previous Annual reports.

Table 5: Disposition of Petitions for Review of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied Denied; Further 

Analysis1 Granted

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

Adverse Action by 

the Agency2 2,473 46 1.86 6 0.24 2,350 95.03 12 0.49 59 2.39

Termination of 

Probationers 39 1 2.56 1 2.56 32 82.05 1 2.56 4 10.26

Reduction in Force 3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33

Performance 28 2 7.14 1 3.57 19 67.86 1 3.57 5 17.86

Acceptable Level of 

Competence (WIGI) 4 0 0.00 1 25.00 1 25.00 0 0.00 2 50.00

Suitability 7 0 0.00 0 0.00 4 57.14 0 0.00 3 42.86

CSRS Retirement: 

Legal 41 3 7.32 2 4.88 32 78.05 2 4.88 2 4.88

CSRS Retirement: 

Disability 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

CSRS Retirement: 

Overpayment 7 0 0.00 1 14.29 5 71.43 0 0.00 1 14.29

FERS Retirement: 

Legal 26 1 3.85 1 3.85 20 76.92 1 3.85 3 11.54

FERS Retirement: 

Disability 16 2 12.50 0 0.00 11 68.75 1 6.25 2 12.50

FERS Retirement: 

Overpayment 18 1 5.56 0 0.00 12 66.67 0 0.00 5 27.78

FERCCA 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Individual Right of 

Action 88 7 7.95 1 1.14 55 62.50 6 6.82 19 21.59

USERRA 17 0 0.00 0 0.00 11 64.71 3 17.65 3 17.65

VEOA 72 2 2.78 0 0.00 64 88.89 3 4.17 3 4.17

Other 121 5 4.13 1 0.83 101 83.47 1 0.83 13 10.74

Total 2,963 70 2.36 15 0.51 2,721 91.83 31 1.05 126 4.25

1

Similar to the FY 2014 Annual Report, “Denied; Further Analysis” includes cases denied on the basis of the issues raised in the PFR, but in 

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

6, and Figures 3.5, 3.5a, 3.7 and 3.7a. Historically, when the Board denied a party’s PFR, but upon review of a case, chose to analyze additional 

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

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

instances in which the Board has already issued a final order or the initial decision has become the Board’s final decision by operation of 

law. The Board refrains from using the term “reopening” in adjudicating a PFR unless it is taking action to reopen a closed matter. Accordingly, 

the Board will continue to report dispositions of cases that are denied, but in which the Board considers other issues of its own accord as 

“Denied; Further Analysis.”

2 This includes 2,137 furlough appeals decided, 25 furlough appeals dismissed, 2,101 furlough appeals denied, 5 furlough appeals denied; 

further analysis, and 6 furlough appeals granted.
27 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3.4: Types of Petitions for Review (Including furlough appeals)

Total Number of PFRs: 2,963

Adverse Actions 

(2,473) 83%

Termination of 

Probationers (39) 1%

Reduction In Force 

(3) 0% Performance (28) 1%

Acceptable Level of 

Competence (4) 0%

Suitability (7) 0%

CSRA Retirement: 

Legal (41) 1%

CSRA Retirement: 

Disability (2) 0%

CSRA Retirement: 

Overpayment (7) 0%

FERS Retirement: 

Legal (26) 1%

FERS Retirement: 

Disability (16) 1%

FERS Retirement: 

Overpayment (18) 

1%

FERCCA (1) 0%

Individual Right of 

Action (88) 3%

USERRA (17) 1%

VEOA (72) 2%

Other (121) 4%
28 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3.4a: Types of Petitions for Review (Not including furlough appeals)

Total Number of PFRs: 826

Adverse Actions 

(336) 41%

Termination of 

Probationers (39) 5%

Reduction In Force 

(3) 0%

Performance (28) 3%

Acceptable Level of 

Competence (4) 0%

Suitability (7) 1%

CSRA Retirement: 

Legal (41) 5%

CSRA Retirement: 

Disability (2) 0%

CSRA Retirement: 

Overpayment (7) 1%

FERS Retirement: 

Legal (26) 3%

FERS Retirement: 

Disability (16) 2%

FERS Retirement: 

Overpayment (18) 

2%

FERCCA (1) 0%

Individual Right of 

Action (88) 11%

USERRA (17) 2%

VEOA (72) 9%

Other (121) 15%
29 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3.5: Disposition of Petitions for Review of Initial Decisions

(Including furlough appeals)

Based on 2,963 Total PFRs

Figure 3.5a: Disposition of Petitions for Review of Initial Decisions

(Not including furlough appeals)

Based on 826 Total PFRs

Dismissed (70) 2%

Settled (15) 1%

Denied (2,721) 

92%

Denied; Further 

analysis (31) 1%

Granted (126) 4%

Dismissed (45) 5%

Settled (15) 2%

Denied (620) 75%

Denied; Further 

Analysis (26) 3%

Granted (120) 15%
30 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Figure 3.6: Disposition of Petitions for Review Granted

(Including furlough appeals)

Based on 126 PFRs Granted

Figure 3.6a: Disposition of Petitions for Review Granted

(Not including furlough appeals)

Based on 120 PFRs Granted

Initial Decision 

Affirmed (11) 9%

Initial Decision 

Reversed (16) 13%

Case Remanded (95) 

75%

Agency Action 

Mitigated (0) 0%

Other (4) 3%

Initial Decision 

Affirmed (10) 9%

Initial Decision 

Reversed (16) 13%

Case Remanded (90) 

75%

Agency Action 

Mitigated (0) 0%

Other (4) 3%
31 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

(Including furlough appeals)

Based on 31 PFRs Denied; Further Analysis

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

(Not including furlough appeals)

Based on 26 PFRs Denied; Further Analysis

Initial Decision 

Affirmed (20) 65%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(1) 3% Agency Action 

Mitigated (0) 0%

Other (10) 32%

Initial Decision 

Affirmed (15) 58%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(1) 4%

Agency Action 

Mitigated (0) 0%

Other (10) 38%
32 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

Decided Dismissed Settled Denied Denied; Further 

Analysis Granted

# # % # % # % # % # %

Department of the Army 1,993 27 1.35 0 0.00 1,949 97.79 5 0.25 12 0.60

Department of the Air 

Force 151 1 0.66 0 0.00 145 96.03 1 0.66 4 2.65

Office of Personnel 

Management 110 7 6.36 5 4.55 79 71.82 4 3.64 15 13.64

Department of Veterans 

Affairs 97 8 8.25 1 1.03 71 73.20 0 0.00 17 17.53

United States Postal Service 84 6 7.14 1 1.19 66 78.57 0 0.00 11 13.10

Department of the Navy 71 1 1.41 1 1.41 56 78.87 3 4.23 10 14.08

Department of Homeland 

Security 67 2 2.99 1 1.49 50 74.63 1 1.49 13 19.40

Department of Health and 

Human Services 62 3 4.84 0 0.00 53 85.48 3 4.84 3 4.84

Department of the Treasury 61 0 0.00 1 1.64 58 95.08 0 0.00 2 3.28

Department of 

Transportation 48 1 2.08 0 0.00 43 89.58 0 0.00 4 8.33

Department of Defense 46 4 8.70 0 0.00 34 73.91 1 2.17 7 15.22

Department of Justice 32 1 3.13 1 3.13 20 62.50 4 12.50 6 18.75

Department of the Interior 24 1 4.17 0 0.00 14 58.33 2 8.33 7 29.17

Department of Agriculture 16 1 6.25 1 6.25 12 75.00 1 6.25 1 6.25

Department of Labor 13 1 7.69 0 0.00 7 53.85 2 15.38 3 23.08

Social Security 

Administration 13 1 7.69 1 7.69 7 53.85 0 0.00 4 30.77

Department of Commerce 12 0 0.00 0 0.00 10 83.33 1 8.33 1 8.33

Department of State 6 0 0.00 0 0.00 6 100 0 0.00 0 0.00

Department of Housing and 

Urban Development 5 1 20.00 0 0.00 4 80.00 0 0.00 0 0.00

General Services 

Administration 5 0 0.00 0 0.00 2 40.00 1 20.00 2 40.00

Department of Energy 4 0 0.00 0 0.00 4 100 0 0.00 0 0.00

Environmental Protection 

Agency 4 2 50.00 1 25.00 1 25.00 0 0.00 0 0.00

Agency for International 

Development 3 0 0.00 0 0.00 3 100 0 0.00 0 0.00

Federal Deposit Insurance 

Corporation 3 0 0.00 0 0.00 1 33.33 1 33.33 1 33.33

Government Printing Office 3 0 0.00 0 0.00 3 100 0 0.00 0 0.00

National Aeronautics and 

Space Administration 3 0 0.00 1 33.33 2 66.67 0 0.00 0 0.00

* This table includes both furlough and non-furlough appeals.
33 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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

Decided Dismissed Settled Denied Denied; Further 

Analysis Granted

# # % # % # % # % # %

Office of Special Counsel 3 0 0.00 0 0.00 3 100 0 0.00 0 0.00

Merit Systems Protection 

Board 2 2 100 0 0.00 0 0.00 0 0.00 0 0.00

Pension Benefit Guaranty 

Corporation 2 0 0.00 0 0.00 2 100 0 0.00 0 0.00

Small Business 

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

Smithsonian Institution 2 0 0.00 0 0.00 2 100 0 0.00 0 0.00

Tennessee Valley Authority 2 0 0.00 0 0.00 2 100 0 0.00 0 0.00

Consumer Product Safety 

Commission 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Department of Education 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Federal Communications 

Commission 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Federal Election 

Commission 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Federal Reserve System 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Federal Retirement Thrift 

Investment Board 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Inter-American Foundation 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100

Judicial Branch 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

National Credit Union 

Administration 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100

National Science 

Foundation 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Nuclear Regulatory 

Commission 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Peace Corps 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Railroad Retirement Board 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

Securities and Exchange 

Commission 1 0 0.00 0 0.00 1 100 0 0.00 0 0.00

TOTAL 2,963 70 2.36 15 0.51 2,721 91.83 31 1.05 126 4.25
34 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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35 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

SIGNIFICANT BOARD DECISIONS AND COURT OPINIONS ISSUED IN FY 2015

Several of the Board’s noteworthy decisions issued in FY 2015 are summarized below. As a service to 

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

U.S. Court of Appeals for the Federal Circuit, other U.S. Federal Courts of Appeals (e.g., under the 

WPEA), and the U.S. Supreme Court.13

Significant Board Decisions Issued in FY 2015

Jurisdiction

Wilson v. Department of Homeland Security, 2015 MSPB 20, 122 M.S.P.R. 262 (2015): At issue in this 

interlocutory appeal was whether the Board had jurisdiction over the appellant’s demotion from her 

Supervisory Coordination Center Officer position with the Transportation Security Administration 

(TSA). Under 49 U.S.C. § 44935, TSA screeners are not entitled to appeal adverse actions to the 

Board. The Board held that, because the appellant did not directly perform screening functions, she 

was not a screener for purposes of section 44935. Therefore, she was entitled to appeal her demotion 

to the Board.

West v. Department of Health & Human Services, 2015 MSPB 34, 122 M.S.P.R. 434 (2015): The 

appellant argued that the Board had jurisdiction over the appeal because the agency terminated her 

for pre-appointment reasons without following the procedures set forth in 5 C.F.R. § 315.805. The 

appellant contended that her termination was based on conditions arising before her appointment 

because a memorandum from her supervisor recommending her termination for unacceptable 

performance during her probationary period mentioned her supervisor’s concerns about hiring the 

appellant due to her lack of certain prior work experience. The Board disagreed, determining that 

the agency did not terminate the appellant due to her lack of prior experience but, rather, because of 

her poor performance during her probationary period. The Board ultimately affirmed the initial 

decision dismissing the appellant’s probationary termination appeal for lack of jurisdiction.

Fouks v. Department of Veteran Affairs, 2015 MSPB 37, 122 M.S.P.R. 483 (2015): Several months after 

appointing the appellant to a GS-13, step 8 position, the agency notified him that an error had been 

made in setting his grade and pay and that he only had been entitled to be paid at the GS-12, step 10 

level. The administrative judge (AJ) issued an initial decision dismissing the appellant’s appeal of his 

reduction in grade and pay for lack of jurisdiction based on 5 C.F.R. § 752.401(b)(15), which 

provides that the Board’s adverse action appeal process under 5 U.S.C. chapter 75 does not apply to 

the reduction of an employee’s rate of basic pay from a rate that is contrary to law or regulation. The 

Board reversed the initial decision, finding that the exclusion contained in 5 C.F.R. § 752.401(b)(15) 

is specific to a reduction in an employee’s rate of basic pay and does not preclude the application of 

chapter 75 to the appellant’s reduction in grade.

Jonson v. Federal Deposit Insurance Corporation, 2015 MSPB 36, 122 M.S.P.R. 454 (2015): Based on his 

alleged failure to satisfy several debts to Federal Deposit Insurance Corporation (FDIC)-insured 

institutions, the agency removed the appellant for violating its regulations at 12 C.F.R. part 336, 

subpart B, governing minimum standards of fitness for employment, which prohibit “a pattern or 

practice of defalcation.” In a previous decision on interlocutory review, a majority of the Board, 

with Member Robbins dissenting, held that the agency had the authority to promulgate regulations 

 

13 As a reminder, although we include summaries of selected Board decisions from early FY 2016, the preceding section on case processing statistics 

include only cases processed in FY 2015.
36 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

governing employee misconduct; the agency was required to obtain the approval of the U.S. Office 

of Government Ethics (OGE) before promulgating the regulations but failed to do so; and the 

Board has jurisdiction to review the appellant’s removal. (Member Robbins agreed with the Board

regarding the latter ruling.) The Board reversed the appellant’s removal, finding that the action was 

not in accordance with law because it was based on regulations that were not promulgated with the 

required OGE concurrence. Jonson v. Federal Deposit Insurance Corporation (Jonson I), 121 M.S.P.R. 56, 

¶¶ 16-17 (2014).

After the Board issued its decision, the agency submitted a declaration from OGE stating that the 

FDIC was not required to obtain its concurrence prior to promulgating the minimum fitness 

regulations. As a matter of comity, the Board deferred to OGE’s determination that its concurrence 

in the FDIC’s minimum fitness regulations was not required and overruled its contrary holding in 

Jonson I. The Board further found that the agency’s prohibition on a pattern or practice of 

defalcation is a valid exercise of its regulatory authority under the Resolution Trust Corporation 

Completion Act and that removal is the mandatory penalty for a pattern and practice of defalcation 

under that statute. Accordingly, the Board remanded the appeal for further adjudication, instructing 

the AJ not to mitigate the penalty of removal if the agency proved both the charge and that the 

appellant’s removal would promote the efficiency of the service.

Sherman v. Department of Homeland Security, 2015 MSPB 52, 122 M.S.P.R. 644 (2015): The appellant 

filed a series of grievances alleging that his FY 2013 performance evaluation was lowered in 

retaliation for his disclosing Federal contracting violations. He subsequently filed a complaint with 

the Office of Special Counsel (OSC), alleging that the agency retaliated against him for the 

disclosure by lowering his performance evaluation and by not granting him a cash award. When 

OSC declined to take corrective action, the appellant filed an individual right of action (IRA) appeal, 

which the AJ dismissed for lack of jurisdiction. On review, the Board found that the appellant made 

a nonfrivolous allegation that his disclosure was a contributing factor in his lowered performance 

evaluation, but that his election to grieve the performance evaluation foreclosed the Board’s 

jurisdiction over that personnel action. In reaching that conclusion, the Board considered the 

appellant’s argument that his grievances did not constitute an election of remedies for purposes of 5 

U.S.C. § 7121(g), because he did not raise whistleblowing reprisal as an issue in his grievances. The 

Board rejected that argument, finding that an employee may not escape the election requirement of 

5 U.S.C. § 7121(g) by challenging the same action on different theories in different fora. The Board 

vacated the initial decision and remanded the case for further development of the record concerning 

the denial of the cash award. 

Compliance

Bills v. Department of the Air Force, 2015 MSPB 25, 122 M.S.P.R. 367 (2015): To demonstrate 

compliance with a Board order directing the agency to cancel the appellant’s removal, retroactively 

restore the appellant to her position, and pay her back pay and interest in accordance with OPM 

regulations, the Board ruled that the agency was not required to show that it informed the Thrift 

Savings Program record keeper of the back pay award or that it requested the Federal Retirement 

Thrift Investment Board to provide a computation of interest and lost earnings. The Board noted 

that the regulations imposing these requirements, 5 C.F.R. §§ 1606.3 and 1606.11, were no longer 

valid after August 31, 2003, and that the new governing regulation, 5 C.F.R. § 1605.13, does not 

impose such requirements.
37 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Adverse Action Charges

Prouty and Weller v. General Services Administration, 2014 MSPB 90, 122 M.S.P.R. 117 (2014): The 

appellants appealed their removals from their positions as Regional Commissioners after the 

agency’s Office of the Inspector General issued a report finding that excessive spending occurred at 

the agency’s 2010 Western Regional Conference. The Board, in affirming the AJ’s decision to 

reverse the appellant’s removals, held that, although the decisions made in planning and carrying out 

the conference reflected “a level of extravagance that [has] no place in government,” the agency 

failed to prove that either appellant knew, or had reason to know, of the planning decisions.

Goeke and Bottini v. Department of Justice, 2015 MSPB 1, 122 M.S.P.R. 69 (2015): The appellants 

appealed their suspensions based on allegations that they committed professional misconduct during 

the criminal prosecution of a United States Senator. During the agency’s disciplinary process, the 

agency violated its internal disciplinary rules by substituting a new proposing official for the original 

official. The original official had determined that discipline was not warranted. The AJ reversed the 

suspensions, finding that the agency’s decision to change the proposing official was a harmful 

procedural error because it led to discipline harsher than that which otherwise would have been 

imposed. The Board affirmed the AJ’s decision to reverse the suspensions based on harmful 

procedural error, without reaching the merits of the substantive charges against the appellants.

Boo v. Department of Homeland Security, 2014 MSPB 86, 122 M.S.P.R. 100 (2014): The agency removed 

the appellant from his Financial Specialist position with the TSA based on charges of undermining 

security procedures and misrepresentation. The charges arose from an incident in which a General 

Services Administration (GSA) representative was allowed to pass through a TSA security screening 

checkpoint without being screened based on the appellant’s incorrect statement to a Transportation 

Security Officer (TSO) and a Supervisory Transportation Security Officer (STSO) that the TSA’s 

Federal Security Director had authorized the GSA representative to bypass screening at the 

checkpoint. The AJ affirmed the appellant’s removal, sustaining the misrepresentation charge based 

on her finding that the appellant had acted with the intent to deceive the TSO and STSO. Relying 

on the elements of falsification established by the Federal Circuit in Leatherbury v. Department of the 

Army, 524 F.3d 1293 (Fed. Cir. 2008), the Board held that, to sustain a charge of misrepresentation, 

an agency must prove that the appellant intended to defraud, deceive, or mislead the agency “for his 

own private material gain.” Applying this standard, the Board found that there was no evidence that 

the appellant made the statement to the TSO and STSO for his own private material gain. 

Therefore, the Board did not sustain the misrepresentation charge. The Board mitigated the penalty 

to a 30-day suspension, finding that this was the maximum reasonable penalty for the sustained 

charge of undermining security procedures.

Whistleblower Protection

Webb v. Department of the Interior, 2015 MSPB 6, 122 M.S.P.R. 248 (2015): The appellant alleged that 

he was subjected to several adverse personnel actions because he wrote a position paper advocating 

for a different proposed agency organizational restructuring and because he sent e-mails expressing 

concern with certain proposed agency changes. The AJ denied the appellant’s request for corrective 

action. The Board agreed with the AJs’ decision to deny the appellant’s request for corrective action, 

holding that he did not make any protected disclosures. The Board stated that general philosophical 

or policy disagreements with agency decisions or actions do not constitute protected disclosures 

unless there is a reasonable belief that the disclosure evidences one of the categories of wrongdoing 

set forth in 5 U.S.C. § 2302(b)(8)(A).
38 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Miller v. Federal Deposit Insurance Corporation, 2014 MSPB 83, 122 M.S.P.R. 3 (2014): The appellant filed 

an IRA appeal alleging that the agency retaliated against him for disclosures he made during an

internal grievance process. Such reprisal is a PPP under 5 U.S.C. § 2302(b)(9)(A)(i). The alleged 

reprisal occurred before the enactment of the WPEA, which extended the IRA appeal right to 

include not only PPPs described in 5 U.S.C. 2302(b)(8), i.e., reprisal for whistleblowing, but also to 

PPPs described in (b)(9)(A)(i), (B), (C) and (D). The Board held the new appeal right created by the 

WPEA pertaining to PPPs described in 5 U.S.C. § 2302(b)(9)(A)(i) did not apply retroactively and, 

therefore, the appellant could not bring an IRA appeal based on activity protected under 5 U.S.C. 

§ 2302(b)(9)(A)(i) regarding events that occurred before the effective date of the WPEA.

Linder v. Department of Justice, 2014 MSPB 84, 122 M.S.P.R. 14 (2014): The appellant filed an IRA 

appeal alleging that he was reassigned in reprisal for disclosing in a motion to dismiss a criminal 

indictment that agency officials were interfering with his ability to defend himself against the charges 

by threatening to bring criminal charges and adverse employment actions against his potential 

witnesses in his criminal trial. The AJ dismissed the appeal for lack of jurisdiction, finding that the 

appellant’s disclosures did not constitute protected activity under 5 U.S.C. § 2302(b)(9) pertaining to 

the exercise of any appeal, complaint, or grievance. The Board agreed that the appellant’s disclosure 

did not fall within the protections of 5 U.S.C. § 2302(b)(9) because the WPEA did not change Board 

precedent regarding the meaning of the terms “appeal, complaint, and grievance” in the statute, and 

filing a motion to dismiss an indictment does not constitute an initial step toward taking legal action 

against an employer for a perceived violation of employment rights. The Board found, however, that 

the appellant’s disclosure was covered by 5 U.S.C. § 2302(b)(8) as an allegation of an abuse of 

authority, and it remanded the appeal for further proceedings.

Lu v. Department of Homeland Security, 2015 MSPB 28, 122 M.S.P.R. 335 (2015): At issue before the 

Board on interlocutory appeal was the appropriate scope of review of a prior disciplinary action in 

the context of an IRA appeal. Under Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 

(1981), the Board’s review of prior discipline upon which the agency has relied in taking an 

appealable adverse action is limited to whether the discipline was clearly erroneous. The Board held 

that the Bolling standard does not apply in the context of a reprisal claim and, therefore, this standard 

does not apply in an IRA appeal. 

Kerrigan v. Department of Labor, 2015 MSPB 42, 122 M.S.P.R. 545 (2015): The appellant filed an IRA 

appeal alleging that the Office of Workers’ Compensation (OWCP) terminated his benefits under 

the Federal Employee’s Compensation Act (FECA) in retaliation for his disclosure that OWCP 

employees engaged in illegal activity. The AJ dismissed the appeal for lack of jurisdiction, finding 

that because the appellant was not himself an OWCP employee, his disclosure was not protected 

and the termination of his benefits was not a “personnel action” for purposes of the Whistleblower 

Protection Act (WPA). On PFR, the Board vacated the initial decision and dismissed the appeal on 

other grounds, finding that the Board lacks jurisdiction over a claim that the agency committed 

whistleblower reprisal by terminating FECA benefits, because 5 U.S.C. § 8128(b) precludes the 

Board from reviewing a decision by OWCP to pay or deny benefits. 

Rainey v. Department of State, 2015 MSPB 49, 122 M.S.P.R. 592 (2015): The appellant filed an IRA 

appeal alleging that the agency stripped him of certain job duties and gave him a poor performance 

rating after he refused to follow an order that would have required him to violate Federal 

Acquisition regulations and training certification procedures. Citing the Supreme Court’s recent 

decision in Department of Homeland Security v. McLean, 135 S. Ct. 913 (2015), the AJ dismissed the 

appeal for lack of jurisdiction, finding that 5 U.S.C. § 2302(b)(9)(D), which protects employees from 

retaliation “for refusing to obey an order that would require the individual to violate a law,” 
39 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

concerns orders that would require the employee to take an action barred by statute, and does not 

extend to orders that would require the employee to violate an agency rule or regulation. The full 

Board agreed and affirmed the initial decision. 

Rebstock Consolidation v. Department of Homeland Security, 2015 MSPB 53, 122 M.S.P.R. 661 (2015): The 

appellants in this consolidated case filed IRA appeals alleging that the agency violated 5 U.S.C. 

§ 2302(b)(9)(D) by threatening them with disciplinary action if they refused to follow agency 

memoranda concerning the exercise of prosecutorial discretion in enforcing Federal immigration law. 

The AJ dismissed the appeals for lack of jurisdiction because the underlying events occurred before 

the effective date of the WPEA, which expanded Board jurisdiction to include IRA appeals alleging 

violations of 5 U.S.C. § 2302(b)(9)(D). The Board affirmed. Consistent with previous Board decisions 

declining to give retroactive effect to WPEA provisions expanding IRA appeal rights to alleged 

violations of 5 U.S.C. § 2302(b)(9)(A)(i), (B), or (C), and applying the analytical framework set forth 

in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Board declined to give retroactive effect to 

the expansion of IRA jurisdiction to alleged violations of 5 U.S.C. § 2302(b)(9)(D), because doing so 

would increase a party’s liability for past conduct. The Board agreed with the AJ that the appellants 

failed to nonfrivolously allege that an individual with authority “threatened” to take disciplinary 

action against them, noting that generalized assertions and fears of discipline without reference to any 

specific matter fall below the modest standard for alleging a threatened personnel action.

Discrimination

Thome v. Department of Homeland Security, 2015 MSPB 27, 122 M.S.P.R. 315 (2015): The appellant, a 

Customs and Border Protection Officer (CBPO), began working light duty during her pregnancy 

and continued to do so after the birth of her child due to concerns that she might be exposed to 

contaminants that could be transmitted to her child through breast milk. The agency removed the 

appellant on a charge of unavailability for full performance of CBPO duties. On appeal, the 

appellant raised claims of disability discrimination and sex discrimination under Title VII of the Civil 

Rights Act and the Pregnancy Discrimination Act (PDA), which amended Title VII by expanding 

the definition of discrimination to include discrimination “because of or on the basis of pregnancy, 

childbirth, or related medical conditions.” In support of her disability discrimination claim, the 

appellant asserted that she was an individual with a disability because her lactation substantially 

limited her ability in the major life activity of working, as she was unable to safely breastfeed her 

child while performing full duty. The Board disagreed, noting that the Equal Employment 

Opportunity Commission (EEOC) has clarified that pregnancy is not an “impairment” within the 

meaning of the Americans with Disabilities Act (ADA) and is therefore not itself a disability, 

although pregnancy-related conditions may be covered. Similarly, the Board found, lactation is not 

an impairment and therefore not itself a disability. The Board also noted that the appellant did not 

allege that she suffered any medical impairments related to lactation, and it found that, to the extent 

that she contended breastfeeding was a matter of medical necessity for her child, any disability 

would be that of the child alone. Regarding the appellant’s sex discrimination claim, the Board noted 

that the circuit courts have been divided on the question of whether the PDA permits a “pregnancy 

neutral” policy of granting light duty exclusively to employees who have on-the-job injuries and/or 

disabilities under the ADA. The Board remanded the appellant’s PDA-based sex discrimination 

claim to the regional office for further adjudication upon the issuance of the Supreme Court’s thenpending opinion in Young v. United Parcel Services, Inc., 135 S. Ct. 1338 (2015), which involved a 

potentially dispositive PDA issue. 

Savage v. Department of the Army, 2015 MSPB 51, 122 M.S.P.R. 612 (2015): The Board reconsidered its 

approach to Title VII claims in light of the Supreme Court’s decision in University of Texas 
40 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), which held that claims arising under 42 

U.S.C. § 2000-3(a), which prohibits retaliation for certain protected equal employment opportunity 

(EEO) activities, are subject to a “but for” causation standard. 

The Board first concluded that Nassar does not apply to Title VII retaliation claims in the Federal 

sector. Rather, Federal sector Title VII claims, including both retaliation and status-based 

discrimination, fall under 42 U.S.C. § 2000e-16(a), which generally provides that personnel actions 

by executive agencies “shall be made free from any discrimination based on race, color, sex, religion, 

sex, or national origin.” 

Next, the Board considered what causation standard should apply to claims arising under § 2000e16(a). In conducting that inquiry, the Board looked to case law interpreting the parallel Federal 

sector Age Discrimination in Employment Act provision at 29 U.S.C. § 633a(a), which similarly 

provides that personnel actions by executive agencies “shall be made free from any discrimination 

based on age.” Citing Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010), and Wingate v. U.S. Postal Service, 

118 M.S.P.R. 566 (2012), the Board observed that a violation of 29 U.S.C. § 633a(a) is established if 

age was a motivating factor in the personnel action, even if it was not the “but for” cause of the 

action. Similarly, the Board concluded, to establish a violation of 42 U.S.C. § 2000e-16(a), it is 

sufficient to show that race, color, religion, sex, or national origin was a motivating factor in the 

personnel action. The Board reasoned that the same also is true of retaliation claims arising under 42 

U.S.C. § 2000e-16(a).

The Board then considered what types of evidence could be used to establish a violation of 42 

U.S.C. § 2000e-16. In addressing that question, the Board looked to Troupe v. May Department Stores 

Company, 20 F.3d 734 (7th Cir. 1994), in which the Seventh Circuit set out a taxonomy of the 

different kinds of evidence which, alone or in combination, may support an inference that 

intentional discrimination or retaliation was a motivating factor in an employment action. In 

addition to direct evidence, i.e., evidence that can be interpreted as acknowledgment of 

discriminatory or retaliatory intent, the court identified three types of circumstantial evidence: 

(1) miscellaneous pieces of evidence, such as suspicious timing, ambiguous statements, and behavior 

toward or comments directed at other employees in the protected group, which, considered 

together, compose a “convincing mosaic” of discrimination; (2) comparator evidence, i.e., evidence 

that similarly situated employees received systematically better treatment; and (3) evidence that the 

agency’s stated reason is unworthy of credence and is merely pretext for discrimination or 

retaliation. The court further clarified that none of the above types of evidence is necessary in every 

case. The Board adopted the Troupe framework, and overruled Fitzgerald v. Department of Homeland 

Security, 107 M.S.P.R. 666 (2008), and other cases in which it held that an appellant alleging EEO 

reprisal must establish a “convincing mosaic” of retaliation.

Next, the Board explained that while 42 U.S.C. § 2000e-16 grants enforcement authority to the 

courts and the EEOC, the Board’s enforcement authority instead derives from civil service law. 

First, 5 U.S.C. § 7702(a) provides that in mixed cases, the Board “shall decide both the issue of 

discrimination and the appealable action in accordance with the Board’s appellate procedures under [5 U.S.C. 

§§ 7701 and 7702].” Overruling its prior decision in Redd v. U.S. Postal Service, 101 M.S.P.R. 182 

(2006), the Board clarified that its appellate procedures do not allow for summary judgment. As a 

result, the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is used 

by the courts and the EEOC to determine whether summary judgment is appropriate, has no 

application to Board proceedings. 
41 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Regarding remedies, 5 U.S.C. § 7701(c)(2)(B) provides that an agency decision will not be 

sustained if the appellant shows that the decision was “based on” a PPP under 5 U.S.C. § 2302(b). 

As the Board explained in Gerlach v. Federal Trade Commission, 9 M.S.P.R. 268 (1981), the term 

“based,” as used here, “connotes that the matter referred to is the most important element.” 

Hence, section 7701(c)(2)(B) mandates reversal only where a PPP was the motivating factor or 

“real reason” for the action. Consequently, while the Board will find a violation of 42 U.S.C. 

§ 2000e-16(a), and hence a PPP under 5 U.S.C. § 2302(b)(1), if the appellant shows that a 

discriminatory or retaliatory motive was a motivating factor in the contested action, such a finding 

will not necessarily result in reversal. Rather, the Board will reverse the action only if the PPP was 

the “but for” cause of the action.

The Board summarized its conclusions as follows: 

[W]hen an appellant asserts an affirmative defense of discrimination or retaliation under 42 

U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by 

preponderant evidence that the prohibited consideration was a motivating factor in the 

contested personnel action. Such a showing is sufficient to establish that the agency violated 

42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 

2302(b)(1). In making her initial showing, an appellant may rely on direct evidence or any of 

the three types of circumstantial evidence described in Troupe, either alone or in

combination. If the appellant meets her burden, we then will inquire whether the agency has 

shown by preponderant evidence that the action was not based on the prohibited personnel 

practice, i.e., that it still would have taken the contested action in the absence of the 

discriminatory or retaliatory motive. If we find that the agency has made that showing, its 

violation of 42 U.S.C. § 2000e-16 will not require reversal of the action. 

The Veterans Employment Opportunities Act (VEOA)

Vassallo v. Department of Defense, 2015 MSPB 8, 122 M.S.P.R. 156 (2015): At issue in this VEOA 

appeal was the meaning of the term “agency” as set forth in 5 U.S.C. § 3304(f)(1), which provides 

that an agency may not deny individuals covered by the statute the opportunity to compete for 

positions for which the agency making the announcement will accept applications from individuals 

outside its own workforce under merit promotion procedures. The appellant, a Defense Contract 

Management Agency (DCMA) employee, applied for a position within a different component of 

DCMA in response to a vacancy announcement, which specified that only applicants from particular 

Department of Defense (DOD) subcomponents would be considered for the position. His 

application was rejected because he did not submit a Standard Form 50 with his application package. 

On appeal, he alleged that the agency accepted applications from outside its own workforce and, 

therefore, violated his veterans’ preference rights by denying him the opportunity to compete for the 

vacant position. The Board explained that, if the term “agency” referred only to DCMA, rather than 

to the DOD at large, the agency did allow applications outside its workforce so as to trigger its 

obligation to allow the appellant the opportunity to compete. Reversing its prior decision, the Board 

held that the term “agency” for purposes of section 3304(f)(1) meant “Executive agency” as defined 

in 5 U.S.C. § 105, and thus, DOD was the agency making the announcement. Therefore, the Board 

found that, because DOD did not accept applications for the position from individuals outside its 

own workforce under merit promotion procedures, it was not required to allow the appellant the 

opportunity to compete for the position.

Boston v. Department of the Army, 2015 MSPB 47, 122 M.S.P.R. 577 (2015): The appellant filed an 

appeal under VEOA, arguing that the agency violated his veterans’ preference rights when it did not 
42 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

select him for an Intelligence Specialist position. In denying the appellant’s request for corrective 

action, the Board first found that the agency was not required to apply title 5 veterans’ preference 

rights because the Intelligence Specialist position was filled pursuant to 10 U.S.C. § 1601, which 

provides that appointments under that statute are made “without regard to the provisions of any 

other law relating to the appointment . . . of employees.” The Board also found that the appellant 

was not entitled to veterans’ preference under the applicable agency regulation, Department of 

Defense Instruction (DoDI) 1400.25. The Board concluded that the regulation, which provides that 

veterans’ preference will be used as a tie breaker for external new employee hiring, is reasonable and 

consistent with 10 U.S.C. § 1601(a)(2), which requires the agency to consider the “availability of 

preference eligibles for appointment” when filling civilian defense intelligence positions. 

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Bostwick v. Department of Agriculture, 2015 MSPB 21, 122 M.S.P.R. 269 (2015): Shortly after returning 

to duty with the agency’s Forest Service following active duty military service, the appellant 

transferred to a different Federal agency at his request. When he learned that he did not qualify for 

special retirement coverage in his new position, the appellant requested restoration to his prior 

position with the Forest Service. The agency denied his request and he filed a USERRA appeal 

alleging that he had been denied restoration to employment. The AJ denied the appellant’s request 

for corrective action on the basis that he failed to establish that he requested reemployment with the 

agency after he was transferred to his new position with another agency. The Board affirmed the 

initial decision as modified, finding that, regardless of whether the appellant requested reemployment 

with the agency following his transfer, the agency satisfied its statutory obligation under USERRA to 

reemploy the appellant when it returned him to duty following his military service.

Stoglin v. Department of the Air Force, 2015 MSPB 43, 123 M.S.P.R. 163 (2015): The appellant filed an 

appeal in which he alleged that his nonselection for the position of Equal Employment Manager 

with the Hawaii Air National Guard was in violation of USERRA and VEOA. The AJ initially 

dismissed the appeal, but the Board remanded the case, finding that the appellant had established 

jurisdiction over his USERRA claim. On remand, the AJ again dismissed the appeal for lack of 

jurisdiction, finding that the Hawaii Air National Guard is a state agency and that the appellant must 

therefore bring his USERRA claim before a state court. In the alternative, the AJ found that the 

appellant failed to state a claim upon which relief could be granted. On petition for review, the 

Board reconsidered the jurisdictional issue, finding that National Guard civilian technicians are state 

employees for USERRA purposes and that jurisdiction over the appellant’s USERRA claim lies with

a state court, not the Board. Accordingly, the Board vacated both its earlier finding of jurisdiction 

and the AJ’s alternative finding, and dismissed the appeal for lack of jurisdiction. 

Furloughs

Einboden v. Department of the Navy, 2015 MSPB 26, 122 M.S.P.R. 302 (2015): The appellant appealed 

his furlough due to sequestration, claiming that he should not have been furloughed because his 

salary was paid out of working capital funds, not appropriated funds. After a hearing, the AJ 

affirmed the furlough action. The Board agreed with the AJ’s determination. The Board held that 

the furlough was a reasonable management solution to the financial restrictions placed on the 

agency. The Board further stated that it was reasonable for the agency to consider its budget 

situation holistically, rather than to isolate individual departments’ budgets.

Salo v. Department of Defense, 2015 MSPB 14, 122 M.S.P.R. 417 (2015): The appellant was furloughed 

for 6 discontinuous days due to sequestration. On appeal, he argued that the agency should have 
43 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

applied the reduction-in-force (RIF) regulations of 5 C.F.R. part 351 instead of adverse action 

procedures, set forth at 5 C.F.R. part 752, because the 6 furlough days were spread out over a time 

period longer than 30 days, and agencies must conduct furloughs of more than 30 days according to 

the procedures of 5 C.F.R. part 351. The AJ affirmed the furlough. The Board agreed with the AJ 

and explained that under 5 C.F.R. § 351.203, RIF regulations apply to furloughs of more than 30 

consecutive calendar days, or more than 22 discontinuous workdays. The Board found that, 

although the length of time that the appellant was subject to being furloughed may have lasted more 

than 22 discontinuous workdays, the agency actually furloughed the appellant on a discontinuous 

basis fewer than 22 days. Thus, the Board determined that the RIF regulations do not apply.

Retirement

Moss v. Office of Personnel Management, 2015 MSPB 19, 122 M.S.P.R. 257 (2015): A divorce decree 

awarded the appellant a portion of his former spouse’s retirement annuity and a former spouse 

survivor annuity, with the cost of the survivor annuity to be deducted from his share of the 

retirement annuity. After his former spouse retired under the Civil Service Retirement System, the 

appellant asked OPM for permission to waive his future entitlement to the former spouse survivor 

annuity so that he could receive an unreduced share of his former spouse’s monthly retirement 

annuity. The appellant filed a Board appeal of OPM’s denial of his request, arguing that 5 U.S.C. 

§ 8345(d) provides him the right to waive his entitlement to a survivor annuity at any time. The AJ 

affirmed OPM’s reconsideration decision. On review, the Board found that 5 U.S.C. § 8345(d) does 

not permit a waiver of entitlement to a former spouse survivor annuity to increase the current share 

of a retirement benefit. Instead, the Board found that the statute allows an individual entitled to an 

annuity to decline to accept payment of the annuity. Such an individual remains entitled to the 

annuity, however, and can begin accepting payment at any time upon proper notice to OPM. The 

Board further found that, although OPM’s regulations allow a former spouse to irrevocably elect not 

to be eligible for a former spouse survivor annuity when a court order provides an election right, the 

divorce decree at issue in this appeal awarded the appellant the survivor annuity without an election 

right. Therefore, OPM properly denied the appellant’s request to irrevocably waive his future 

entitlement to the court-ordered former spouse survivor annuity. The Board concluded that the AJ 

properly affirmed OPM’s reconsideration decision. 

Angel v. Office of Personnel Management, 2015 MSPB 33, 122 M.S.P.R. 424 (2015): Prior to her removal 

for inability to perform the essential functions of her position, the appellant applied for disability 

retirement benefits under the Federal Employees’ Retirement System. In an initial decision reversing 

OPM’s denial of the appellant’s application, the AJ found that the appellant was presumed to be 

entitled to disability retirement benefits pursuant to Bruner v. Office of Personnel Management, 996 F.2d 

290, 294 (Fed. Cir. 1993), in which the Federal Circuit held that an employee’s removal for physical 

inability to perform the essential functions of his position constitutes prima facie evidence that he is 

entitled to disability retirement. On review, OPM argued that the AJ erred in applying the Bruner

presumption because the appellant did not produce copies of a Standard Form 50 effecting her 

removal, or the proposal or decision to remove her for inability to perform the essential functions of 

her position. The Board held that an appellant is not required to produce any specific documentary 

evidence before the Bruner presumption applies, and the AJ correctly applied the presumption. 

The Board also rejected the agency’s argument on review that the appellant failed to prove that she 

was qualified for disability retirement because she applied for full-time positions and held several 

part-time positions after she filed her disability retirement application. The Board explained that, to 

qualify for disability retirement benefits, the appellant was not required to show that her disability 

rendered her incapable of working all positions. Rather, the relevant position for determining her
44 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

qualification for retirement benefits was the position she last held before filing her application. The 

Board found that the appellant met her burden of proving that she was qualified for disability 

retirement benefits by showing that her medical condition prevented her from performing the 

requirements of the job she held when she applied for disability retirement benefits. The fact that 

she was able to work other positions with duties and responsibilities that are different from that 

position is immaterial to determining whether her condition affected her ability to perform the 

specific work requirements of the position she held at the time of her application for disability 

retirement benefits.

Attorney Fees

Southerland v. Department of Defense, 2014 MSPB 88, 122 M.S.P.R. 51 (2014): At issue in this case was 

whether the appellant was the “prevailing party” for attorney fees purposes even though the Board 

sustained all of the charges against him, found that he failed to prove his affirmative defense of 

disability discrimination, and upheld his removal. The appellant argued that he was entitled to 

attorney fees based on the Board’s finding that the deciding official’s statements in the decision 

letter constituted direct evidence of disability discrimination. In support of his request for attorney 

fees, the appellant asked the Board to defer to the EEOC’s apparent determination that, in a mixedmotive case, an appellant is considered a prevailing party for purposes of establishing an entitlement 

to attorney fees even if the agency proved by clear and convincing evidence that it would have taken 

the action against him regardless of the discriminatory motive, and even in the absence of any award 

of personal relief. The Board declined to do so, explaining that it generally defers to the EEOC on 

issues of substantive discrimination law; however, an EEOC decision regarding an attorney fees 

award is not a decision on an issue of substantive discrimination law. The Board concluded that, 

even assuming the Board’s finding regarding the statements in the decision letter was a finding of 

discrimination, the appellant was not a prevailing party because he received no actual relief and there 

was no material alteration of the legal relationship between the parties.

Penalties

Bowman v. Small Business Administration, 2015 MSPB 18, 122 M.S.P.R. 217 (2015): The appellant was 

removed based on charges of excessive unauthorized leave and failure to follow proper leave 

requesting procedures. The AJ sustained the charges but mitigated the penalty to a 30-day 

suspension, finding that the appellant’s mental impairment played a part in the charged misconduct 

and therefore it was entitled to considerable weight as a mitigating factor. The Board affirmed the 

initial decision, rejecting the agency’s argument that the AJ erred in considering evidence regarding 

the connection between the appellant’s mental condition and his absences that was not presented 

until the appellant’s hearing testimony. The Board noted that in Norris v. Securities & Exchange 

Commission, 675 F.3d 1349, 1355-57 (Fed. Cir. 2012), the Federal Circuit held that, where new 

evidence supporting mitigation of the penalty is presented to the Board, the evidence must be 

considered in determining whether the agency’s penalty was reasonable. Therefore, the Board found, 

the AJ properly considered the appellant’s hearing testimony that his depression, in part stemming 

from the recent death of his son, played a part in the absences that formed the basis for the charges. 

In his dissent, Member Robbins expressed his view that removal was a reasonable penalty for the 

sustained misconduct in light of the seriousness of the misconduct, the appellant’s status as a 

supervisor, his lack of remorse, and his work and disciplinary record, which showed that the 

appellant had a history of failing to comply with the agency’s leave and attendance policies.
45 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

National Security Determinations

Wilson v. Department of the Navy, 2015 MSPB 48, 122 M.S.P.R. 585 (2015): The appellant was 

removed based on the revocation of his security clearance. On appeal, he argued that his removal 

was a violation of USERRA and that the Supreme Court’s decision in Department of Navy v. Egan, 484 

U.S. 519 (1988), which precludes the Board from reviewing the merits of a security clearance 

determination in an adverse action appeal, does not apply to USERRA claims. The AJ affirmed the 

agency’s removal action. The Board agreed with the AJ and held that Egan applies to affirmative 

defenses such as his USERRA claims as well as adverse action appeals.

Rogers v. Department of Defense, 2015 MSPB 54, 122 M.S.P.R. 671 (2015): The appellant was indefinitely 

suspended based on the suspension of his access to classified information pending the final 

adjudication of his security clearance. The AJ reversed the action on the ground of harmful procedural 

error, finding that the agency failed to comply with internal regulations that require it to afford an 

employee “unfavorable administrative action procedures” before taking an adverse action based on a 

“personnel security determination.” On PFR, the Board reversed the initial decision and sustained the 

indefinite suspension action. In doing so, the Board clarified the distinction between a security 

clearance, which is a determination by an authorized adjudicatory entity that the employee is eligible 

for access to classified information, and actual an access to classified information, which is granted by 

local command to cleared individuals on a need-to-know basis. The Board found that the suspension 

of access to classified information (pending a final adjudication of the clearance), as opposed to the 

suspension of a security clearance, is not a “personnel security determination” as defined by the 

agency’s regulations and therefore the agency was not required to afford the appellant “unfavorable 

administrative action procedures” before it indefinitely suspended him. 

Significant Opinions Issued by the U.S. Courts of Appeals in FY 2015

Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015): The Federal Circuit affirmed the Board, holding 

that suitability-based removals of tenured employees are appealable adverse actions under chapter 

75. The Court also determined that deference to an agency’s penalty choice is not warranted when 

the OPM, rather than the employing agency, makes the penalty determination. The Court also 

clarified that, when reviewing a suitability-based removal, the Board also has jurisdiction to review 

debarments and cancellations of eligibility as part of a unified penalty arising from the same set of 

circumstances as the removal.

After Hopper was decided, the President signed the National Defense Authorization Act (NDAA) in 

law.14 The NDAA includes a provision amending 5 U.S.C. § 7512, which sets forth the “adverse 

actions’ that are appealable to the Board under chapter 75. Section 7512 now provides in relevant 

part, that “[t]his subchapter . . . does not apply to ... (F) a suitability action taken by [OPM] under 

regulations prescribed by [OPM], subject to the rules prescribed by the President under this title for 

the administration of the competitive service.”

Aviles v. Merit Systems Protection Board, 799 F.3d 457 (5th Cir. 2015): In a decision issued by the U.S. 

Court of Appeals for the Fifth Circuit pursuant to the “All-Circuit Review” provision of the 

Whistleblower Protection Enhancement Act (WPEA), the Court affirmed the Board’s final decision, 

holding that disclosures of purely private misconduct are not protected disclosures covered by 5 

 

14 The NDAA for FY 2016 (Pub. L. No. 114-92) was enacted on November 25, 2015 and can be found at https://www.congress.gov/bill/114thcongress/senate-bill/1356/text.
46 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

U.S.C. § 2302(b)(8). The Court stated that the WPA and WPEA protect only disclosures of 

government wrongdoing. The Court also declined to apply the U.S. Court of Appeals for the 

Federal Circuit’s standard for determining whether an allegation is nonfrivolous, analogizing it to the 

summary judgment standard under Rule 56 of the Federal Rules of Civil Procedure (FRCP). Instead 

the court adopted a motion-to-dismiss standard analogous to FRCP Rule 12, under which all wellpleaded facts are accepted as true and viewed in the light most favorable to the petitioner. 

Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir. 2014): The Federal Circuit held that the Board 

properly found good cause for the Department of Labor’s (DOL’s) decision to furlough its 

administrative law judges (ALJs) for 5.5 days due to the Governmentwide budget sequester in 2013. 

The Court held that, when assessing the propriety of an ALJ furlough, “good cause” is defined on a 

case-by-case basis, considering such factors as: (1) whether the reason for the furlough is one that 

interferes with the ALJs’ judicial independence; (2) any disparate treatment; and (3) whether the 

agency had sound business reasons for issuing the furlough. Applying these factors, the Court held 

that the furloughs represented a sound business decision by the agency because it made a neutral 

decision to apply the cuts equally to each subaccount. According to the Court, the agency met the 

“good cause” standard despite the difference in furlough lengths because there was no evidence that 

the difference was because of the employees’ ALJ status. 

Bernard v. Department of Agriculture, 788 F.3d 1365 (Fed. Cir. 2015): The appellant filed a petition for 

enforcement (PFE) and sought discovery in a case in which he alleged breach of a settlement 

agreement that had been entered into the record for enforcement purposes. The AJ dismissed the 

petition for enforcement (PFE) without responding to the appellant’s request to engage in discovery, 

finding that the appellant did not support his bare allegations of breach with any evidence 

demonstrating bad faith. The Board affirmed, concluding that parties in enforcement proceedings 

generally do not need to ask permission to engage in discovery, that the Board only becomes 

involved when a motion to compel is filed and that, because the appellant did not file a motion to 

compel, the AJ did not err in failing to respond to his discovery requests. 

The court reversed and remanded, agreeing with the appellant that the AJ was required to respond 

to his discovery requests, and the failure to do so impaired the appellant’s ability to gather evidence 

to establish breach. In so finding, the Court observed that the Board’s regulations do not inform 

appellants whether they have a right in enforcement proceedings to directly engage in discovery 

without obtaining permission from the AJ. See 5 C.F.R. § 1201.183(a)(4). The Court also examined 

Board precedent and found no clear guarantee of the right to engage in discovery in enforcement 

proceedings without first obtaining the AJ’s approval. The Court concluded that, because the AJ 

failed to respond to the appellant’s requests to engage in discovery and the error was not harmless, 

remand was required. 

After Bernard was decided, the Board issued interim regulations which provide that discovery may be 

undertaken in accordance with the Board’s regular discovery procedures, except that unless 

otherwise directed by the AJ, initial discovery requests must be served no later than 15 days after the 

alleged noncomplying party files a response to the petition for enforcement. 5 C.F.R. 

§ 1201.183(a)(9). 

Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015): The Federal Circuit reversed a Board decision that 

determined the agency failed to provide a rational basis for requiring an employee to accept a 

directed reassignment or prove that the employee’s removal satisfied the efficiency of the service. 

The court held that the Board erred in abandoning the burden-shifting approach set forth in Ketterer 

v. Department of Agriculture, 2 M.S.P.R. 294 (1980), which it stated remained the law of the circuit. 
47 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Applying Ketterer, the court held that the record supported the AJ’s findings that: (1) the agency had 

legitimate management reasons for the employee’s reassignment; and (2) the employee failed to 

rebut the agency’s prima facie case. The Court concluded that the employee’s failure to follow 

instructions bore directly on the efficiency of the service and that her removal was therefore proper.

Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015): The appellant, a preference-eligible 

Evidence Custodian, applied for two merit-promotion vacancies with his employing agency. Both 

applications were rejected because he did not meet the time-in-grade requirements necessary to be 

considered for the positions. The appellant appealed his nonselections to the Board, alleging that he 

was denied the opportunity to compete for the vacancies under VEOA because the agency did not 

consider his non-Federal civil service experience, and the Board affirmed the agency’s decision. 

Thereafter, the Federal Circuit affirmed the Board’s decision, holding that agencies are not required 

to consider non-Federal civil service experience when determining whether a veteran employed in 

the Federal civil service meets time-in-grade or specialized experience requirements for purposes of 

merit promotions. The Court explained that the purpose of VEOA was to help veterans gain access 

to Federal employment, not provide preferential treatment in promotion decisions.

Ryan v. Department of Homeland Security, 793 F.3d 1368 (Fed. Cir. 2015): The Federal Circuit held that 

an indefinite suspension based on a loss of security clearance is not subject to the penalty mitigation 

analysis under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The Court also 

determined that Board correctly declined to order termination of the indefinite suspension following 

the petitioner’s acquittal of criminal charges because the condition for terminating the suspension 

was not the acquittal, but rather the agency’s final determination regarding her eligibility for access to 

classified information, which had not yet occurred. The Court further found that, insofar as the 

petitioner was alleging that the determination concerning her security clearance was unduly delayed, 

an agency has broad discretion to determine how much time is required to evaluate whether the 

revocation of a suspended clearance is appropriate. The Court also determined that neither it, nor 

the Board, could review the petitioner’s contentions concerning the validity of the agency’s reasons 

for revoking her clearance. Finally, the Court rejected the petitioner’s contention that she was 

entitled to new notice when the basis for the indefinite suspension implicitly became the revocation, 

rather than the suspension, of her clearance. The Court observed that the suspension of the 

petitioner’s clearance was based on her inability to access classified information and that the 

revocation of her clearance made this inability permanent.

Significant Opinions Issued by the U.S. Supreme Court in FY 2015

Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015): The Supreme Court affirmed a 

Federal Circuit ruling that the agency unlawfully removed an Air Marshal for in reprisal for disclosing 

lapses in aviation security. The WPA provides that whistleblower protections do not extend to a 

disclosure “specifically prohibited by law.” The agency argued that the Air Marshall’s disclosures were 

specifically prohibited by law because they involved “Sensitive Security Information,” a category of 

information created solely by the agency’s regulations. The Federal Circuit vacated the Board’s 

decision that upheld the removal action. The Supreme Court affirmed the Federal Circuit, holding 

that a disclosure “specifically prohibited by law” must be expressly barred by the statute itself, not 

merely by an agency rule or regulation. Because the Air Marshall’s disclosures were not specifically 

prohibited by law, the Court held that his removal for having made them violated the WPA.
48 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Significant Board Decisions and Court Opinions Issued in Early FY 2016

Kitlinski v. Department of Justice, 2015 MSPB 60: The appellant filed an appeal in which he alleged that, 

after he drove his personally owned vehicle to the agency’s headquarters to attend a deposition in his 

EEO complaint, he discovered a Blackberry device concealed under the hood of his car. He 

contended that it was the same Blackberry model that the agency used for voice recording and 

electronic tracking and monitoring. In his USERRA appeal, he alleged discrimination, a hostile work 

environment, and retaliation based upon the exercise of his USERRA rights. The AJ issued an initial 

decision dismissing the USERRA appeal for lack of jurisdiction. On review, the Board affirmed the 

initial decision as modified, finding that the appellant failed to nonfrivolously allege that the agency’s 

purported conduct was based on his military status or that the agency subjected him to a hostile 

work environment in violation of USERRA.

Dean v. Department of Labor, 808 F.3d 497 (Fed. Cir. 2015): The Federal Circuit held that the Board 

has jurisdiction to consider violations of 5 U.S.C. §§ 3302(1) and 3308 pursuant to section 3330a of 

VEOA because sections 3302(1) and 3308 are statutes relating to veterans’ preference. In so 

holding, the Court affirmed the Board’s implicit finding that section 3302(1) is a statute relating to 

veterans’ preference, but reversed the Board’s explicit finding that section 3308 is not a statute 

relating to veterans’ preference. The Court further determined that the placement of the “Recent 

Graduate” Wage and Hour Specialist position into the excepted service as part of the Pathways 

Recent Graduates Program and the program’s minimal education requirement of a college degree 

did not violate Mr. Dean’s veterans’ preference rights under either section 3302(1) or section 3308, 

given that there was ample justification in the record showing a rational basis for that educational 

requirement. The Federal Circuit affirmed the Board’s denial of corrective action. 

McCarthy v. Merit Systems Protection Board, Fed. Cir. Docket No. 2015-3072 (Jan. 14, 2016): The 

Federal Circuit affirmed a Board determination not to reopen an appeal after the Board had issued a 

decision in the case. Here, the motion to reopen asserted that a change in the law—the enactment of 

the WPEA—required a different result than the previously decided Board decision, which the Court 

had affirmed on the merits. The Court concluded that it did have jurisdiction to review the Clerk of 

the Board’s letter denying the motion to reopen. The Court rejected the Board’s arguments that a 

letter from the Clerk’s Office is not a final appealable decision or order. In so finding, the Court 

distinguished its prior holding in Haines v. Merit Systems Protection Board, 44 F.3d 998, 1000 (Fed. Cir. 

1995), as applying only in instances of multiple requests to reopen, and not where the Clerk’s letter 

denies a first motion to reopen premised on a change in the law. The Court also held that a strong 

presumption exists in favor of judicial review of administrative action and rejected the Board’s 

contention that the “broad and standardless” language of 5 U.S.C. § 7701(e)(1)(B) [any decision shall 

be final unless—“(B) the Board reopens and reconsiders a case on its own motion.”] precludes 

judicial review under § 702(a)(2) of the Administrative Procedures Act. Rather, the Court looked to 

established Board practice, regulations, and case law as supplying the necessary standards for 

reviewing a Board decision on a motion to reopen. 
49 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2015

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service 

and merit systems. MSPB’s high-quality, objective merit systems studies provide value by assessing 

current management policies and practices, identifying innovative and effective merit-based 

management policies and practices, and making recommendations for improvements. These 

factors also help reduce the occurrence and costs of PPPs that negatively affect agency and 

employee performance. Overall, this benefits American taxpayers in terms of decreased 

Governmentwide costs and increased confidence that the Government is doing its job and 

appropriately managing the workforce.

MSPB research was cited in a wide range of online and print publications. Notably, MSPB’s merit 

systems studies reports were cited in a number of policy-making sources including two GAO 

reports15, one on using the probationary period to manage poor performers (Addressing Poor Performers 

and the Law,) and one on improving employee engagement (The Power of Employee Engagement), and in 

GAO testimony on improving engagement of Federal employees.16 In Congressional testimony on 

the floor of the House and in a Congressional blog, Representative Mark Takano quoted the MSPB 

studies report What Is Due Process in Federal Civil Service Employment? (linked below) in regard to 

pending legislation on the VA Accountability Act of 2015.

17 OPM also cited MSPB engagement 

reports in a white paper on how to engage the Federal workforce.18

During FY 2015, MSPB merit systems studies’ staff conducted 38 outreach events with Federal 

employees, supervisors and managers, agency representatives and attorneys, and international 

visitors regarding Federal merit systems, the statutory roles of MSPB, and issues, findings, and 

recommendations from merit system studies and OPM oversight. For example, studies’ staff 

members were invited to present on Veterans’ employment rights at the Federal Dispute Resolution 

Conference, as well as briefings on employee engagement for OPM’s Virtual Human Resources 

Conference and a retreat for OPM senior management organized by the Federal Executive Institute. 

MSPB studies’ staff members were invited to present to the Federally Employed Women National 

Training Program and the Federal Asian Pacific American Council National Leadership Training 

Program on preventing favoritism and discrimination. Federal News Radio broadcasted several 

interviews with MSPB studies’ staff regarding recently released reports. 

In FY 2015, MSPB published three new merit systems study reports:

 Veterans’ Employment Redress Laws in the Federal Civil Service

 The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs

 What is Due Process in Federal Civil Service Employment?

In FY 2015, MSPB also finalized the 2015-2018 research agenda. The published research agenda

discusses how the agenda was developed and provides brief summaries of 34 topics that MSPB 

considers appropriate for study based on four criteria: centrality, timeliness, ambition, and 

practicality. The three merit systems study reports published in FY 2015 and a summary of a report 

published in early FY 2016 are summarized in this section of the Annual Report.

 

15 http://www.gao.gov/assets/670/668339.pdf and http://www.gao.gov/assets/680/671396.pdf

16 http://webcache.googleusercontent.com/search?q=cache:NFGtSGa860J:www.gao.gov/assets/670/669676.pdf+&cd=1&hl=en&ct=clnk&gl=us

17 https://www.congress.gov/congressional-report/114th-congress/house-report/225/1

18 https://dl.dropboxusercontent.com/u/29440904/SBR/Engaging%20the%20Federal%20Workforce.pdf
50 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

In FY 2015, MSPB published other products including:

 Issues of Merit (IoM) newsletters – Newsletters inform Federal leaders, employees, and 

stakeholders about merit systems and Federal management issues and practices through 

articles that discuss current MSPB research and reports, noteworthy agency practices, and 

Federal HR policies and initiatives.

 Individual, electronic “flash” articles – These articles on selected merit systems or workforce 

management topics are posted on the MSPB website at a time or in a format the IoM does 

not readily accommodate.

 Research Highlights – These are one-page summaries of published MSPB studies. Several 

Research Highlights also have been compiled into a “catalog” of MSPB studies.

 Mini-briefings – Short presentations about selected MSPB studies.

Summaries of Reports Released in FY 2015

Veterans’ Employment Redress Laws in the Federal Civil Service (November 2014) reviews statutes and case 

law to educate Federal agencies, job applicants, and stakeholders about two laws concerning the 

hiring and reemployment of veterans in the Federal service. Proper understanding and administration 

of these laws is essential both to fair and legally compliant treatment of veterans and avoiding the 

appearance or reality of unauthorized preferential treatment. The Veterans Employment 

Opportunities Act of 1998 (VEOA) provides an avenue for veterans to seek redress for violations of 

their preference rights or right to consideration for certain vacancies. The Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA) provides for redress for individuals 

who experience discrimination based on a military service obligation or are denied reemployment 

rights following such service. (Related MSPs: 2, 4, 5, and 8; PPPs: 4, 5, 6 and 11.)

The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (January 2015) reviews the 

implementation, in policy and practice, of the principle of fair and open competition for staffing 

positions in the Federal service. Although the principle of fair and open competition is enduring, 

changes in technology and policy—which include the ability to apply for jobs electronically, the 

near-complete decentralization of Federal hiring and a proliferation of noncompetitive hiring 

authorities that can be used to fill positions in the competitive service—have materially changed the 

nature and extent of job competitions. This report discusses the ideal and implementation of fair 

and open competition, examines how changes to civil service policy are affecting job competitions 

and their outcomes, and explores whether changes to policy or practice are needed. (Related MSPs: 

1, 2, and 5; PPPs: 1, 2, 4, 5, and 6.)

What is Due Process in Federal Civil Service Employment? (May 2015) explains the interaction between the 

U.S. Constitution and adverse personnel actions in a merit-based civil service, discussing the history, 

rationale, and provisions of current civil service law for adverse actions. The report outlines the 

constitutional requirements of any system to remove a public employee for cause: (1) an opportunity 

for the individual to know the charges and present a defense; and (2) the ability to appeal a removal 

decision before an impartial adjudicator. The report’s appendix presents selected information on 

policy and practice to correct some common misperceptions about how the civil service currently 

operates. (Related MSPs: 4, 5, 6, and 9; PPPs: 1, 3, 8, and 9.)
51 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Summaries of Reports Released in Early FY 2016

Training and Development for the Senior Executive Service: A Necessary Investment (December 2015)

examines current practices on how career senior executives—who manage major programs and 

organizations and provide continuity during Presidential transitions—are trained and developed. 

Unfortunately, the review indicates that the “systematic development” envisioned in the Civil 

Service Reform Act of 1978 is more vision than reality. To that end, the report contains information 

to help agencies determine a development strategy that aligns with agency goals and resources and 

effectively addresses executives’ training needs. In addition, the report discusses common barriers to 

SES training and offers strategies to mitigate them.

FY 2015 Issues of Merit Newsletter Topics

MSPB published three editions of the Issues of Merit newsletter and three other short articles on the 

MSPB studies flash page. MSPB also issued, through the studies flash page, Adverse Actions: The Rules 

and The Reality, an eight-page monograph that draws on published and nonpublished research to 

provide insight on how agencies decide about and take adverse actions and inform the ongoing policy 

debate over Federal employee accountability and protections. Products of this type fill a gap between 

the Issues of Merit newsletter and a study report, providing MSPB with a vehicle to explore issues of 

policy or practice with more depth than a short article and more immediacy than a full-length report. 

The Merit Systems Studies Research Agenda for FY 2015 - 2018

In FY 2015, MSPB finalized its merit systems studies research agenda. The research agenda guides 

MSPB in conducting objective, nonpartisan studies that assess and evaluate Federal merit systems 

policies, operations, and practices. 5 U.S.C. § 1204(a)(3). The goal of the review was a research 

agenda that addresses both continuing imperatives, such as achieving a workforce free of prohibited 

personnel practices, and contemporary issues, such as making the best possible use of advances in 

technology and the impact of policy changes on the Federal workforce. The agenda was developed 

through an open and deliberative process that included a call for ideas and input from interested 

citizens, a public meeting at which the Board Members and key stakeholders discussed the proposed 

agenda, and formal approval by the Board. The final research agenda for 2015-2018 was approved 

by the Board Members in January 2015 and published in February 2015.

2016 Merit Principles Survey (MPS)

MSPB made significant progress toward the next administration of MSPB’s flagship survey, the 

MPS, with administration scheduled for mid-2016. MSPB administers the MPS to obtain Federal 

employees’ perceptions and experiences regarding the health of merit in the workplace, occurrence 

of PPPs, and other topics in support of MSPB’s studies program.

MSPB’s Cloud-based Survey Capability

MSPB completed, with support from Department of the Interior’s National Business Center, a 

solicitation for a survey capability to support agency performance improvement under GPRAMA 

and merit system studies under 5 U.S.C. § 1204. No responses were received, which may reflect 

the solicitation’s necessary and substantial technical requirements in relation to its dollar value. 

MSPB has placed this initiative on hold to focus on the 2016 MPS and research, in coordination 

with IRM, policy guidelines and technical issues related to shared services available through the 

Office of Management and Budget (OMB; e.g., MAX Survey).
52 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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53 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT 

IN FY 2015

As required by statute,19 MSPB reviews and reports on the significant actions of OPM including an

analysis of whether OPM’s actions are in accord with MSPs20 and free from PPPs.21 OPM’s actions

broadly affect the Federal workforce, multiple Federal agencies, and applicants for Federal jobs.

Almost all of OPM’s actions have the potential to impact the effectiveness and efficiency of the

Federal workforce (MSP 5) and/or fair and equitable treatment in a variety of contexts (MSP 2).

Depending on the nature of a particular OPM action, it has the potential to affect or involve other

specific MSPs. Additional MSPs that may be affected by a particular OPM action are noted in each

action’s ‘Significance’ section.22 In addition to tracking OPM’s action we also requested input from

OPM on significant actions.

Factors Affecting the U.S. Office of Personnel Management

This review should be read in the context of issues and developments that directly affect OPM and 

can indirectly affect the nature and scope of the OPM policy initiatives that are the primary focus of 

MSPB’s review.

Data Breaches. During FY 2015, OPM experienced data breaches of two of its computer systems 

that held Federal employee personnel records and security clearance information. The personal 

information of approximately 26 million current and former Federal employees, contractors, job 

applicants, and family members was stolen during these breaches.

23 Undoubtedly, many OPM 

resources (people and money) were diverted from other mission-related purposes to respond to 

these data breaches. The effect that these data breaches may have on seemingly unrelated OPM 

programs and operations, however, remains unknown. For example, if large numbers of employees 

fail to respond to future administrations of OPM’s annual Federal Employee Viewpoint Survey—

either in fear of their responses being compromised or because they are disillusioned by the way 

OPM handled their personal or security clearance data—conclusions drawn from that survey may 

become less reliable. Also, should the data breach adversely affect policymaker and stakeholder 

perceptions of OPM’s competence or credibility, it may hinder OPM’s ability to successfully 

propose and implement changes to Governmentwide human resources policy. 

OPM Leadership. In July 2015, OPM Director Katherine Archuleta resigned.

24 Since her 

resignation, OPM has been led by Acting Director, Beth F. Cobert, who has been nominated as the 

permanent OPM Director. OPM has not had a deputy director since 2011, as the Senate has not 

confirmed a nominee for that position.25

 

19 5 U.S.C. § 1206.

20 5 U.S.C. § 2301.

21 5 U.S.C. § 2302.

22 This summary of OPM’s most significant actions or initiatives focuses on those actions that have the most potential to affect one or more of the 

MSPs or PPPs, rather than serving as a comprehensive digest of OPM activities. In addition to its Federal human capital management policymaking 

role, OPM also is assigned functions that do not relate to MSPs or PPPs (such as its responsibilities under the Patient Protection and Affordable Care 

Act). OPM also provides services to Federal agencies that are not included in this review (such as conducting employee background investigations and 

processing retirement claims). If a significant OPM action was discussed in a previous MSPB Annual Report, and no significant changes have been 

made to those programs, our previous comments remain applicable. Therefore, this summary should be read in conjunction with previous MSPB 

reports of OPM’s significant actions.

23 Joe Davidson, “New OPM Data Breach Numbers Leave Federal Employees Anguished, Outraged,” The Washington Post, July 9, 2015.

24 Julie Hirschfeld Davis, “Katherine Archuleta, Director of Personnel Agency, Resigns,” The New York Times, July 10, 2015.

25 Lisa Rein and Joe Davidson, “OPM Director Katherine Archuleta Resigns Under Pressure,” The Washington Post, July 10, 2015.
54 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

New Significant Actions of the U.S. Office of Personnel Management

Senior Executive Service Reform and Modernization

The objective of the People and Culture cross-agency priority (CAP) goal of the President’s 

Management Agenda is to “[unlock] the full potential of the current Federal workforce and build the 

workforce we need tomorrow” through: creating a culture of excellence and engagement to enable 

higher performance; building a world-class Federal management team, starting with the Senior 

Executive Service (SES); and enabling agencies to hire the best talent from all segments of society.26

OPM undertook a wide range of actions during FY 2015 to reform and modernize the SES in 

support of this cross-agency priority goal. Among these actions were:

White House Advisory Group on SES Reform. OPM, in partnership with OMB, coordinated 

and supported a White House SES Advisory Group composed of leaders from across the 

Federal Government. The advisory group was tasked to develop recommendations on SES 

reform for the President’s consideration. The group has completed its work, and OPM and 

OMB are currently reviewing its recommendations.

White House Leadership Development Program. OPM provided support to OMB on the design 

and initial implementation of a new White House Leadership Development Program for aspiring 

members of the SES. Interviews were conducted during the fiscal year to select the first cohort 

of participants for the program.

SES Onboarding Framework. OPM created an enhanced and standardized agency SES 

onboarding framework that covers a full range of activities needed to support the orientation 

and performance of new executives, such as in-briefing, establishing and communicating 

performance expectations, development planning, and networking.27 This new and improved 

onboarding framework will involve leading practices, shared information and resources, and 

cost-saving efficiencies so agencies can help new executives quickly and successfully assimilate 

into their organizations, achieve high performance, and effectively engage their employees. OPM 

intends to work with the eight pilot agencies as they implement the new framework in FY 2016 

and share lessons learned and best practices with all Federal agencies.

SES Exit Survey. In March 2015, OPM released the initial results of a new Governmentwide

SES Exit Survey that was hosted by OPM. The survey collects data regarding the circumstances 

of the departure of employees from the SES. It provides useful information to inform Federal 

agencies’ recruitment, engagement, and retention of senior executives.28

Situational Mentoring. OPM has established a Governmentwide Situational Mentoring Program 

for new and current executives. Situational mentoring is a short term discussion between 

executives, on a high impact issue, problem, challenge or opportunity. The purpose of the 

program is to provide advice and guidance that allows executives to appropriately address critical 

issues; enhance individual and organizational performance; and develop the Executive Core 

Qualification competencies.29

 

26 See the People and Culture cross-agency priority goal overview at performance.gov.

27 See U.S. Office of Personnel Management, “SES Onboarding Enhanced Framework,” available via www.opm.gov.

28 See Katherine Archuleta memorandum for Chief Human Capital Officers, “Release of the 2015 SES Exit Survey Governmentwide Report,” March 

30, 2015.

29 See Katherine Archuleta memorandum for Chief Human Capital Officers, “Launch of the Governmentwide SES Situational Mentoring Program,” 

December 11, 2014.
55 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Performance Management. In 2012, OPM and OMB announced the design and issuance of a 

basic SES performance appraisal system. The system was designed to improve Governmentwide 

performance management of the SES by providing a consistent and uniform framework for 

agencies to communicate expectations and evaluate the performance of SES members, 

particularly centering on the role and responsibility of SES members to achieve results through 

effective executive leadership. In September 2015, OPM issued final regulations implementing 

the basic SES performance appraisal system.30 In addition to promoting greater consistency, the 

system is intended to promote greater clarity, transferability, and equity in the development of 

performance plans, the delivery of feedback, the derivation of ratings, and the link to 

compensation. The system also provides agencies with some flexibility and capability for 

customization to permit them to adapt the system to their particular needs.

Significance

As noted in an MSPB report on executive training and development,31 the SES was envisioned as a 

corps of executives who would possess a broad Government perspective and be capable of serving 

in multiple leadership positions across Government agencies. The purpose of the SES was “to 

ensure that the executive management of the Government of the United States is responsive to the 

needs, policies, and goals of the Nation and otherwise is of the highest quality.”32

Decisions made by SES employees and the ways in which they manage other Federal employees can 

have broad implications. Approximately one-third of career senior executives manage more than 200 

employees and approximately one-quarter are responsible for budgets that exceed 100 million dollars.33

Members of the SES affect not only their agency’s capacity for carrying out its mission and generating 

appropriate products and services for the American public, but also shape the perceptions of their 

agency’s value by their workforce, the public, Congress, and the White House.34

High performing career senior executives have effectively managed the budgets of massive 

programs, saved the Federal Government billions of dollars, made significant contributions to 

increasing national security, facilitated commerce, and helped create positive relationships with 

foreign countries, to name but a few accomplishments.35 In contrast, poor leadership can result in 

mission failure, a demoralized workforce, tarnished agency reputation, and public distrust of the 

agency or Government as a whole.36

Given the influence that SES employees have on achieving agency missions and managing the 

Federal workforce, it is vitally important that the processes used to hire, train, reward, and manage 

these employees be robust and effective. In maintaining and improving these processes, OPM 

should continue to work with representatives of the SES to ensure their needs are met. Additionally, 

the importance of making the SES attractive to new entrants and improving the retention of current 

SES members only will increase in the coming years as over half of the current SES workforce will 

be eligible for retirement over the next three to five years.37 OPM’s ongoing efforts to reform and 

modernize the SES indirectly relate to all the MSPs given the responsibility of the SES for leading 

employees and making personnel decisions.

 

30 Managing Senior Executive Performance (Final rule), 80 Fed. Reg. 57,693 (September 25, 2015).

31 See U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015.

32 5 U.S.C. § 3131.

33 U.S. Office of Personnel Management, Senior Executive Service Survey Results for Fiscal Year 2011, May 2012, pp. 123-124.

34 See U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015.

35 Senior Executives Association, 2015 Presidential Distinguished Award Winner Accomplishments.

36 See U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015.

37 U.S. Office of Personnel Management, Senior Executive Service Exit Survey Results April 2015, U.S. Office of Personnel Management, p. 7.
56 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

Recruitment, Engagement, Diversity, and Inclusion (REDI) Initiative

In March 2015, OPM released the REDI Roadmap. The REDI Roadmap is a data-centric approach 

that OPM developed to support the People and Culture cross-agency priority goal of the President’s 

Management Agenda38 that is intended to bring together all of the tools available to agencies to help 

them attract, develop, and retain a talented, engaged, and diverse workforce.39

Recruitment. Specific recruitment-related initiatives under REDI include—

 Working with agencies to improve their processes, focusing on three specific areas: (1) laws, 

regulations, and merit system principles that may be confusing to managers; (2) OPM 

policies that may hinder effective hiring practices; and (3) potential agency 

misunderstandings of their authority to use existing hiring flexibilities;40

 Planned improvements to USAJOBS.gov, the Governmentwide portal for job posting and 

application, to improve the experience of job seekers and to provide agencies with data on 

that experience to help them measure the success of their recruitment efforts, locate 

applicants for particular jobs, and better analyze resumes;

 Expanding partnerships with colleges, universities, and other entities to fill critical skills gaps 

with a diverse pool of applicants; and

 Improving the effectiveness of the Pathways programs and eliminating barriers to attracting 

diverse talent to the Senior Executive Service. 

Engagement. The REDI Roadmap recognizes that engaged employees are more productive and 

effective than employees who are not engaged. OPM’s goal is to support high levels of employee 

engagement by supporting the development of transformational agency leaders, providing 

opportunities for the enrichment of Federal employees’ careers, and helping agencies measure and 

act on key drivers of employee engagement. Increasing Federal employee engagement is a central 

theme of the People and Culture CAP goal of the President’s Management Agenda. A key indicator of 

that cross-agency goal is that, from 2015 to 2016, Federal employee engagement will have increased 

by three percentage points as measured by OPM’s Federal Employee Viewpoint Survey.41

Diversity and Inclusion. Initiatives to promote diversity and inclusion are woven into the 

recruitment and engagement portions of the REDI Roadmap. These initiatives aim to address the 

under-representation of women, Hispanics, and people with disabilities in the Federal workforce. In 

March 2015, the Diversity and Inclusion in Government Council was established to provide a forum

for improving senior leadership engagement and collaboration on strategic and operational diversity 

and inclusion priorities.42

Significance

Recruitment. The REDI Roadmap provides for active OPM assistance to agencies in improving 

recruitment and streamlining their hiring practices. Efforts to improve Federal recruiting relate to 

MSP 1—recruiting from qualified individuals in an endeavor to achieve a workforce from all 

 

38 See People and Culture cross-agency priority goal overview at performance.gov.

39 U.S. Office of Personnel Management News Release, “OPM Releases Recruitment, Engagement, Diversity, and Inclusion (REDI) Roadmap,” 

March 9, 2015. For more information on the REDI Roadmap, see the OPM REDI website.

40 Emily Kopp, “OPM Banks on Data to Attract Younger, More Diverse Job Seekers,” Federal News Radio, March 9, 2015.

41 See Shaun Donovan, Beth Cobert, Katherine Archuleta, and Meg McLaughlin memorandum for Heads of Executive Departments and Agencies, 

“Strengthening Employee Engagement and Organizational Performance,” December 23, 2014. Also see People and Culture Cross Agency Priority 

Goal Quarterly Progress Update for FY 2015 Quarter 3, p. 4.

42 Katherine Archuleta, Beth Cobert, Meg McLaughlin, and Jenny Yang memorandum for Heads of Executive Departments and Agencies, 

“Establishment of a Diversity and Inclusion in Government Council,” March 6, 2015.
57 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

segments of society, and selecting and advancing based on relative ability, knowledge, and skills after 

fair and open competition assuring that all receive equal opportunity—and OPM’s efforts to 

improve Federal agency understanding and use of the hiring system are constructive.

MSPB has two broad observations about improving the hiring system. Our first observation 

concerns balancing efficiency and speed in hiring with other important values. Most will agree that 

the processes used by agencies to hire new employees can be made more effective and efficient. 

However, any improvements made to hiring systems must operate within the framework established 

by the MSPs and PPPs. These principles and prohibitions impose both ethical and procedural 

constraints on Federal agencies to help ensure that Federal employees are hired and managed based 

on merit resulting in a Federal workforce free from undue political influence or favoritism. 

Policymakers, stakeholders, and agencies must understand that these constraints place limits on 

“streamlining” and the extent to which Federal hiring can or should mirror actual or perceived 

private sector practices. 

Our second observation relates to the scope and results of current and previous efforts to reform 

Federal hiring. Improving hiring is a long-term effort and OPM has focused considerable attention 

to this issue over the years. Nevertheless, it appears that sustained and substantial progress remains 

elusive. For example, as of the third quarter in FY 2015,43 hiring manager satisfaction had increased 

only marginally, to 61 percent from the baseline of 60 percent.44 Enabling Federal agencies to 

routinely “[hire] the best talent”—and effectively balance the several values and goals of Federal 

hiring—may ultimately require more than improved understanding and implementation of existing 

policy. For example, the percentage of hiring managers who report active, personal participation in 

recruitment and outreach remains essentially unchanged from the baseline level of 43 percent. 

Clearly, greater involvement is desirable and achievable. However, many hiring managers may see 

little practical value in active recruitment under conditions that may include an overwhelming 

volume of applications, applicant assessments of insufficient rigor or reliability, and referral and 

selection rules that give little or no practical weight to a manager’s valuation of a candidate’s merits. 

As discussed in various MSPB reports on hiring, those conditions may be a consequence of 

Governmentwide policy as well as a consequence of imperfect understanding or practice.

45

Engagement. Continued OPM and agency attention to Federal employee engagement is appropriate. 

Previous MSPB research found a relationship between higher levels of employee engagement and 

improved Federal agency outcomes. Specifically, in agencies where more employees were more 

engaged better program results were produced, employees used less sick leave, fewer employees 

filed equal employment opportunity complaints, and there were fewer cases of workplace injury or 

illness.46 Our subsequent research established the importance of effective performance 

management processes,47 job design, and rewards in improving employee engagement.48 Efforts to 

increase employee engagement are related to MSP 4, which envisions that employees will act in the 

public interest.

 

43 See U.S. Merit Systems Protection Board, “The Federal Civil Service Hiring System is Out of Balance,” Issues of Merit, Fall 2015, and U.S. Merit 

Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, September 2006.

44 “Cross Agency Priority Goal Quarterly Progress Update: People and Culture,” FY 2015 Quarter 3, accessed via www.performance.gov.

45 See, for example, U.S. Merit Systems Protection Board, The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs, January 2015, pp. 1 

and 3-9; Evaluating Job Applicants: The Role of Training and Experience in Hiring, January 2014, pp. 27-34, and Veteran Hiring in the Civil Service: Practices and 

Perceptions, August 2014, pp. 5-12.

46 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, September 2008.

47 U.S. Merit Systems Protection Board, Managing for Engagement—Communication, Connection, and Courage, July 2009.

48 U.S. Merit Systems Protection Board, The Motivating Potential of Job Characteristics and Rewards, December 2012.
58 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

However, it is important that policymakers and stakeholders recognize the limits as well as the value 

of employee engagement and its measures. First, it is plausible that any management attention 

directed at improving the workplace, agency leadership, or employee morale should have some 

positive effect on agency operations. It remains unclear, however, what effect small improvements 

in Federal employee engagement as measured by the FEVS—such as the stated goal of a three 

percentage point increase—will have on agency outcomes. In addition, because OPM notes that the 

FEVS employee engagement index does not directly measure employee engagement—although it 

covers most, if not all, of the conditions likely to lead to employee engagement49—it is uncertain that 

even large increases in that index would result in positive agency outcomes.

Second, although agency leaders can influence the work environment and other drivers of employee 

engagement, they are far from the only factor that affect an employee’s level of engagement as 

measured by instruments such as the FEVS. In the short term, in particular, indicators of employee 

satisfaction and engagement can be greatly affected by externally-directed changes in policy, budget, 

or structure. Also, it may be necessary for agency leaders to undertake, in the long-term public or 

agency interest, actions that are disruptive to both organizations and individuals.50 In such situations, 

effective leadership could result in short-term decreases, rather than increases, in employee 

engagement. Finally, employees themselves must be active participants in their own engagement. 

For example, “pride in one’s work” ultimately requires an individual willing to produce outstanding 

results and a personal understanding of the importance of those results to the American people.51

For these reasons, although executives should be accountable for efficient and effective use of the 

workforce and for taking steps to understand and sustain employee engagement, it appears 

counterproductive to hold agencies or individual executives accountable for a particular increase (or 

decrease) in any measure of employee engagement, regardless of its source.

Diversity and inclusion. Efforts to improve diversity and inclusion in the Federal workplace relate to 

MSP 2, requiring fair and equitable treatment of employees, and MSP 8, protecting employees 

against arbitrary action, personal favoritism, or coercion for partisan political purposes. Continued 

attention to diversity and inclusion is supported by MSPB research, which documents that the vision 

of full inclusion of all employees, regardless of non-merit factors, is not yet fully achieved although 

substantial progress has been made.52

Federal Supervisory and Managerial Framework and Guidance

In September 2015, OPM issued the Federal Supervisory and Managerial Frameworks and 

Guidance.53 The guidance provides direction on developing individuals in supervisory, managerial, 

and executive positions, as well as employees whom agencies identify as potential candidates for 

such leadership positions. OPM’s guidance includes mandatory and recommended training on 

leadership competencies and human resources technical knowledge. The guidance also includes the 

required and refresher training mandated for all supervisors and managers. 

 

49 See for example, U.S. Office of Personnel Management, 2012 Federal Employee Viewpoint Survey Results Governmentwide Management Report, p. 12.

50 See U.S. Merit Systems Protection Board, Managing Public Employees in the Public Interest, January 2013, pp. 15-17, for discussion of the perceived 

necessity for Federal leaders to make difficult or potentially controversial decisions such as eliminate obsolete or unnecessary functions and positions.

51 Pride in one’s work is almost universally recognized as an indicator or outcome of employee engagement. See, for example, U.S. Government 

Accountability Office, “Federal Workforce: Preliminary Observations on Strengthening Employee Engagement During Challenging Times,” 

GAO-15-529T, April 16, 2015, and U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, September 2008.

52 See, for example, U.S. Merit Systems Protection Board, Fair & Equitable Treatment: Progress Made and Challenges Remaining, December 2009; Preserving the 

Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, December 2013; and Sexual Orientation and the Federal Workplace: 

Policy & Perception, May 2014.

53 Mark Reinhold memorandum for Human Resources Directors, “Federal Supervisory and Managerial Frameworks and Guidance,” September 28, 

2015.
59 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

OPM collaborated with the Federal Chief Learning Officers Council and the Interagency Training 

Work Group to develop the frameworks. This new issuance updates the Federal Supervisory 

Training Framework released in 2012 and includes OPM-developed definitions, learning objectives, 

and evaluation materials to assist agencies in evaluating the effectiveness of their supervisory and 

managerial development programs.

Significance

In our 2008 report, A Call To Action: Improving First-Level Supervision of Federal Employees, we noted that 

Federal supervisors need substantially more training and development.54 Many new supervisors do 

not receive the training and development opportunities they need to understand the agency’s 

expectations for supervisors and to manage their employees effectively. At that time, less than twothirds of supervisors said that they received training prior to or during their first year as a supervisor. 

Of those who received training, almost half (48 percent) received one week or less.

The recommendations of that report included that OPM provide guidance to assist agencies in using 

competencies as a basis for supervisory selection and development. We also suggested that OPM 

provide additional guidance to help agencies make practical use of these competencies, such as (1) 

operational definitions—descriptions of how each competency is applied at the first level of 

supervision; (2) behavioral examples for different levels of proficiency; and (3) options for 

assessment and development. 

OPM’s new framework will undoubtedly assist agencies to better prepare their supervisors, or 

current and aspiring supervisors prepare themselves, for their crucial role in the workplace. Federal

supervisors are the nexus between Government policy and action, as well as the link between 

management and employees. They ensure that the decisions made by the President and Congress 

are implemented through the information and services that employees provide to the American 

public. Because they have direct and frequent contact with employees, first-level supervisors can 

have a stronger, more immediate impact on employee performance and productivity than higherlevel managers.55

Of particular significance for this review is that training on the MSPs and PPPs is included as a topic 

of training required for new supervisors. Although the vast majority of Federal supervisors claim 

familiarity with the MSPs (89 percent) and the PPPs (92 percent),56 agency human resources 

management (HRM) staff report somewhat less confidence in supervisors’ familiarity with the PPPs 

and MSPs. Only 50 percent of HRM staff believe supervisors and managers are trained on the PPPs 

to a great extent and 16 percent said supervisors and managers have little or no training on the 

PPPs. Forty-six percent of HRM staff believe supervisors and managers are trained to a great extent 

on MSPs, and 18 percent had little or no MSP training.57

Although improved training of Federal supervisors is necessary and welcome, Federal agencies 

should recognize the limitations of training. Merely attending training courses does not guarantee 

that employees have acquired the competencies those courses purport to impart. Additionally, some 

competencies needed to excel as a Federal supervisor may not be well-suited to development 

 

54 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision of Federal Employees, May 2010, p. ii.

55 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision of Federal Employees, May 2010, p. 1.

56 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, December 

2013, p. 34.

57 U.S. Merit Systems Protection Board, The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs, January 2015, p. 37.
60 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

through training.58 Accordingly, Federal agencies should maintain sound programs for selecting 

supervisors and take appropriate action when a supervisor is unable or unwilling to adequately carry 

out supervisory responsibilities. 

MSP 7 states that employees should be provided effective education and training in cases where 

better organizational and individual performance would result. As noted, MSPB research documents 

both the importance of effective supervisors to Federal agency performance and the need to 

strengthen supervisory training.

OPM Significant Actions Underway or Completed

This section lists selected OPM significant actions discussed in previous MSPB Annual Reports that 

were completed or remained underway in FY 2015. This year’s report does not discuss these actions 

in detail because further action or results are pending or the intent and significance of the final 

action is essentially unchanged from the (previously reviewed) proposed action. The table below lists 

the action, its current status, and the previous MSPB Annual Report which discussed the action.

OPM Action 2015 Status

Year 

Discussed

Designation of national 

security positions

OPM issued final regulations on June 5, 

2015.59

2013

Governmentwide strategy on 

gender pay equality

OPM transmitted new guidance and 

summarized recent activities related to 

commitments made in the 

Governmentwide strategy.60

2014

 

58 U.S. Merit Systems Protection Board, Making the Right Connections: Targeting the Best Competencies for Training, February 2011.

59 Designation of National Security Positions in the Competitive Service, and Related Matters (Final rule), 80 Fed. Reg. 32,244 (June 5, 2015).

60 Beth F. Cobert memorandum for Chief Human Capital Officers, “Additional Guidance on Advancing Pay Equality in the Federal Government,”

July 30, 2015.
61 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

FINANCIAL SUMMARY

Fiscal Year 2015 Financial Summary61

as of

September 30, 2015

(dollars in thousands)

FY 15 Appropriations

FY 2015 Appropriation $ 42,740

Civil Service Retirement and Disability Trust Fund 2,345

Total $ 45,085

Obligations Charged to FY 2015 Funds

Personnel Compensation $ 22,954

Personnel Benefits 6,363

Transportation of Things 34

Travel of Persons 280

Rents, Communications and Utilities 4,225

Printing and Reproduction 50

Other Services 2,383

Supplies and Materials 114

Equipment/Lease Improvements 935

Reimbursable Obligations 2,345

Total $ 39,683

 

61 This summary shows financial activity (appropriations and obligations by category) for FY 2015. Additional Financial Information in available in the 

FY 2015 Annual Financial Report available on our website.
62 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

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63 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

LIST OF ABBREVIATIONS AND ACRONYMS

AC Air conditioning

ADA Americans with Disabilities Act

ADR Alternative Dispute Resolution

AJ Administrative Judge

APR-APP Annual Performance Report and Annual Performance Plan

CB Clerk of the Board

CBPO Customs and Border Protection

CEU Continuing Education Units

CLE Continuing Legal Education

CMS/LM Case Management System/Law Manager

COOP Continuity of Operations Plan

CSC Civil Service Commission

CSRA Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111

CSRS Civil Service Retirement System

DCMA Defense Contract Management Agency

DoDI Department of Defense Instruction

DMS Document Management System

DOD Department of Defense

DOI Department of Interior

DOL Department of Labor

DWOP Dismissal Without Prejudice

ED Executive Director

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity Commission

EVS Federal Employee Viewpoint Survey

FECA Federal Employee’s Compensation Act

FERS Federal Employees’ Retirement System 

FEVS Federal Employee Viewpoint Survey

FLRA Federal Labor Relations Authority

FRCP Federal Rules of Civil Procedure

FTE Full Time Equivalent

FY Fiscal Year

GAO Government Accountability Office

GC General Counsel

GPRAMA Government Performance and Results Act Modernization Act of 2010

GS General Schedule

GSA General Services Administration

HQ Headquarters

IoM Issues of Merit 

IRA Individual Right of Action

IS Internal Survey

IT Information Technology

LGBT Lesbian, Gay, Bisexual, and Transgender

MAP Mediation Appeals Program

MPS Merit Principles Survey

MSP Merit System Principles

NDAA National Defense Authorization Act
64 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

OAA Otherwise Appealable Action

OEEO Office of Equal Employment Opportunity

OGE Office of Government Ethics

OMB Office of Management and Budget

OPM Office of Personnel Management

OSC Office of Special Counsel

PDA Pregnancy Discrimination Act

PFE Petition for Enforcement

PFR Petition for Review

PIO Performance Improvement Officer

PPP Prohibited Personnel Practices

RFI Request for Information

RFQ Request for Quote

RIF Reduction-In-Force

SES Senior Executive Service

SLA Service Level Agreement

STSO Supervisory Transportation Security Officer

TBD To be determined

TSA Transportation Security Administration

TSO Transportation Security Officer

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act

USPS U.S. Postal Service

VA Veterans Affairs

VERA Voluntary Early Retirement Authority

VSIP Voluntary Separation Incentive Plan 

VTC Virtual Teleconference

WB Whistleblower

WPA Whistleblower Protection Act

WPEA Whistleblower Protection Enhancement Act of 2012
65 Merit Systems Protection Board Annual Report for FY 2015 February 29, 2016

U.S. Merit Systems Protection Board

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Washington, DC 20419

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