U.S. MERIT SYSTEMS PROTECTION BOARD 

Washington, D.C. 20419 

T H I R D

 A N N U A L R E P O R T 

March 1982 
1. Introduction 

In its third year of operation, the Merit Systems Protection Board continued to strive for 

efficiency and excellence in dealing with the enormous workload of adjudicating Federal 

employee appeals, while also reporting to the President and Congress on various components 

of the Federal merit Systems as required by statute. Besides the adjudicatory function the 

Board has three other statutory obligations which require it to: analyze and report on significant 

actions of the Office of Personnel Management (OPM); review the validity of OPM regulations 

both on their face and as implemented by agencies; and conduct studies of the Merit systems. 

In addressing these duties, the Board's third year was one filled with major 

accomplishment, challenge and adjustment to change. 

The accomplishments included: 

• The adjudication of over 7,000 cases in the regional Offices, an increase of over 19600 

from 1980, and accomplished with fewer staff. 

• Meeting the 120-day time limit for issuing initial decisions in the regional offices in over 

98% of the cases. 

• The issuing of several studies on important aspects of the merit systems­

• The addition of a second administrative law judge to assist the Board in dealing with its 

ever-growing number of complex legal cases. 

• The publication of two volumes of the Board’s decisions and a comprehensive index 

and the creation of a monthly digest to summarize current Board actions. Both 

publications were prepared to give the public and the agencies easier access to Board 

decisions. 

1981 was also a year of major changes for the Board and its personnel With the 

resignation of the Board's first head, Chairwoman Ruth T. Prokop, on July 19 Board Vice-Chair 

Ersa H. Poston assumed the agency’s leadership role until President Reagan named Herbert 

E. Ellingwood to be Chairman on December 14, and he was sworn in December 18. This 

change in leadership was accompanied by the long awaited relocation of the Board's 

Headquarters to 1120 Vermont Avenue N.W. in mid-October. 
-2­

The challenge that dominated agency management in 1981 was one not uncommon to 

much of the federal bureaucracy: doing more with less. At the Board however,, the problem 

was even more severe Reduced resources, coupled with a spiraling workload of reduction-inforce (RIF) and over 11,000 air traffic controller appeals, threatened to take the Board's 

workload right off the agency charts and create backlogs of a magnitude unknown since 

passage of the Civil Service Reform Act in 1978. 

In August, a large number of the nation’s air traffic controllers were removed by the 

Federal Aviation Administration because of their alleged participation in a strike. This event 

was to have a profound impact on the Board’s workload as the Board shortly became the 

focus of the fired air traffic controllers' efforts to regain their jobs By early October over 11,000 

had filed appeals in the-Board's regional offices. 

But even while the Board was attempting to cope with this enormous new workload and 

the limited resources available to deal with it, new challenges were arising. In December, the 

Board sustained a 16% cut in its budget as a result of wording in a Continuing Resolution 

approved -by Congress even though the President had not recommended any cuts in the 

Board's funding because of the workload. 

At the year's end, the Board was seeking legislative remedies to the funding dilemma, 

while examining the possibility of staffing reductions and administrative cuts to comply with the 

reduced funding. 

II. The Board and Its Members 

The Merit Systems Protection Board was created pursuant to Reorganization Plan No. 

2 of 1978 and the Civil Service Reform Act of 1978. A quasi-judicial agency, the Board is 

comprised of a bipartisan three member panel and charged with being the watchdog of the 

Federal merit systems. This mandate is implemented by the Board through the four statutory 

duties already discussed. 

Because the Board has such broad powers in reviewing the personnel practices 

established by OPM and of the numerous government agencies within its Jurisdiction 

Congress took measures to assure that the Board would have that degree of independence 

necessary to properly exercise its authority. These measures include: 
-3­

• Providing the Board with authority to make simultaneous submissions of budgets and 

legislative proposals to Congress and the President, thus eliminating the need for prior 

approval by the Office of Management and Budget; 

• Permitting the Board to appoint personnel essentially free of approval by the Executive 

Branch; 

• Representing itself in the Federal courts except before the Supreme Court; and 

• Appointing the Board members for non-renewable terms and permitting removal only 

under extraordinary Circumstances. 

The Board members are appointed by the President with the advice and consent of the 

Senate for seven year terms, and the designation of anyone as Chair Must be approved by the 

Senate. Serving on the Board in 1981 were: 

Chairwoman Ruth T. Prokop, who served as the Agency's first chair and was appointed 

by President Jimmy Carter just days after the Civil Service Reform Act took effect. Prokop, 

whose government service began on the staff of then Vice President Lyndon Johnson, had, 

just prior to coming to the Board, served as General Counsel for the Department of Housing 

and Urban Development and before that as Special Assistant to the Under Secretary of HUD. 

Mrs.- Prokop resigned from the Board effective July 1 to return to the private practice of law. 

Chairman Herbert S. Ellingwood, appointed late in the year by President Ronald 

Reagan to fill the balance of Prokop’s unexpired terms had been serving as Deputy Counsel to 

the President at the time of his appointment to the Board. Prior to coming to Washington 

Ellingwood, in addition to private practice served as Special Assistant Attorney General for 

California for four years as well as Legal Affairs Secretary to then Governor Reagan, and as 

Deputy District Attorney for Alameda County. 

Vice-Chair Ersa B. Poston, who served as the acting head of the agency from July 1 to 

December 18, Was sworn in January 2 9 19 7 9 - Poston bad been a Commissioner on the 

United States Civil Service Commission since 1977. Prior to her appointment as Civil Service 

Commissioner Poston had served as a member of Governor Nelson A. Rockefeller's cabinet, 

as President and member of the New York State Civil Service Commission. She was also 

Chairperson of the President’s Advisory Council on Intergovernmental Personnel Policy. Prior 

to serving in those positions, she had been Director of the New York State Office of Economic 

Opportunity and Confidential Assistant to Governor Rockefeller. 
Member Ronald P. Wertheim was sworn in as the third member of the Board in October 

of 1979 and served on the Board until he resigned in December 1981, to accept a judicial 

appointment. Wertheim had been in the private practice of law for 10 years prior to coming to 

the Board, but during that period also served as an advisor to the Secretary of Defense for the 

Law of the Sea Negotiations and as Alternate Representative to the United Nations 

Conference on the Law of The Sea. Wertheim had also served &3 Deputy General Counsel of 

the Peace Corps. 

Ill. Organization of the Board 

The Board is comprised of a number of operating offices which carry out the duties of 

the organization, while the three-member Board has responsibility for implementing its 

statutory functions. The Chairman, as chief executive officer, is vested with responsibility for 

its overall operations. 

Authority for the day-to-day management of the Board, both in headquarters and in its 

eleven regional offices, is delegated to the Managing Director by the Chairman. The Deputy 

Managing Director has overall , responsibility for the operation of the regional offices and 

reviews the initial decisions of these Offices, recommending that the Board reopen cases or 

take other appropriate action as necessary. 

The Office of the General Counsel provides legal counsel to the Board and offices 

within the Board, and represents it in all court actions except before the Supreme Court. It 

also participates in the review of OPM regulations. 

The Office of Legislative Counsel responds to Congressional inquiries, drafts testimony 

provides information about the Board to the public and press, and comments on proposed 

legislation and regulations. 

The Office of Administrative Law Judges adjudicates cases under the Hatch Political 

Activities Act, hears disciplinary cases and proposed removals involving administrative law 

judges and, upon assignment by the Board, conducts hearings in sensitive and complex 

appeals as well as proceedings initiated by the Special Counsel. This office also has 

jurisdiction over, and issues orders in response to, motions for subpoenas and discovery filed 

in the Board's regional offices. 

The Office of Merit Systems Review and Studies analyzes and studies the health" of 

the merit systems for the purpose of issuing reports required by the Act; participates in the 

review of OPM regulations; and has the lead role in reviewing the significant activities Of OPM­
-5 ­

The Office of Appeals prepares draft opinions and orders for the Board based upon its 

analysis of both petitions for review from initial decisions rendered in the regions and the 

records of cases reopened by the Board on its own notion. 

The Office of the Secretary is responsible for the flow of communications concerning 

Board actions and related matters to and from the Board. Additionally the Office of the 

Secretary is responsible for the docketing of pending cases and maintaining records on closed 

cases; making initial determinations for requests submitted under the Freedom of Information 

and Privacy Acts; and for the publication and distribution of all Board orders and opinions 

including regional office initial decisions. 

The Office of Administration is responsible for handling procurements personnel, 

administrative services and budgetary needs of the Board. 

The Office of Special Counsel has independent investigator and prosecutorial duties 

and is responsible for bringing certain actions before the Board. The Special Counsel is 

required by 5 U.S.C. 1206(m) to submit an annual report to the Congress; therefore, this report 

will not address Special Counsel activitiesIV. Adjudication of Cases 

The adjudication of cases is by far the most time consuming activity of the Board and 

consequently utilizes the greatest proportion of its resources 

Adjudication Of Cases generally begins with the filing 'of an appeal in one of the 

Board's 11 regional offices. A brief examination of the numbers and types of cases received in 

the regional offices therefore tells a great deal about the Board's workload. 

Brief Summary of Regional Operations 

As can be seen from the statistics for the appeals pending, received, and processed 

during Calendar Year 1981 found in the appendix of this document, the accomplishment of the 

Board’s eleven regional offices during the past year was marked by increased productivity. 
-6 ­

Apart from air traffic controller appeals (discussed below), the Board. received 7,349 

other appeals which were filed during 1981, an increase Of over 1,000 cases in our normal 

workload. Thus, with the casework which remained from 1980 filings, the Board’s regular 

appeals On hand for adjudication by the regional Offices during 1981 totaled 9,444 cases, an 

increase of over 10800 cases from the previous year’s inventory. Over 7,000 appeals were 

processed to completion by the regional offices, however, representing an almost 

corresponding increase in productivity of over 1,600 Cases beyond the number processed 

during 1980. 

Through coordinated and concentrated efforts the Board also has continued its timely 

adjudication of appeals casework in the regional offices, with remarkable success at the close 

of calendar year 1981. In fact, the regional offices improved upon their previous record for 

timely adjudication of appeals, meeting the Board’s 120-day time limit for adjudication in over 

98%1/ of cases processed during the year. 

In addition, the Board has continued its emphasis upon maintaining a high quality of 

adjudication by the regional Offices. Comments during the year by employee unions, agency 

officials, and other interest groups were increasingly favorable in regard to the excellent level 

of credibility, integrity, and professionalism being found in the adjudications by the Board’s 

regional offices. 

it is noteworthy that the accomplishment o f the regional offices during calendar year 

1981 were achieved under difficult circumstances: steadily increasing casework receipts, 

coupled with increasingly severe budgetary constraints prevented the Board from maintaining 

staffing levels commensurate with the increasing demands Of the adjudication work. 

A substantial part of the increased workload resulted from reduction-in-force (RIF) 

appeals caused by the budgetary cutbacks affecting federal agencies generally during 1981. 

In the last three months of calendar year 1981, as the impact of reduced funding levels began 

to be felt, a total of 953 reduction-in-force appeals were filed, which is considerably in excess 

of the total number of RIF appeals filed during all of the preceding year. (For further details see 

charts in the appendix.) 

1/ A complete report of the cases received as well as of those that exceeded 120 days as 

required by 5 U.S.C. 7701(i)(2) is included in the appendix. 
-7­

In addition to the increase of over 1,000 cases in the number of appeals which normally 

would have been received during 1981, the Board, as already mentioned has received over 

11,000 appeals since September 1981 by former air traffic controllers. 

The Board's continuing good record of achievement during 1981 resulted primarily from 

concentrated special efforts by the professional and clerical staffs of the regional offices. 

However, the Board’s restricted funding during the year also required curtailment of needed 

support activities such as developmental training programs and training conferences for 

regional office staffs, and on-site evaluation - or assistance Visits to the regional offices by 

headquarters support staff. 

By year's end, the impact of the severe budget restrictions had required the Board to 

impose stringent limitations on staffing and travel expenses, notwithstanding the heavy 

caseload, and to initiate regulatory changes in our processing of appeals. 

In this regard, the Board's regulations were revised in December 1981 to eliminate a 

previous requirement for Board service of documents by certified mail; to provide that copies of 

all filings will be served directly on each other by the parties, rather than by the Board; and to 

discontinue the previous practice of furnishing hearing transcripts to appellants and agencies 

free of charge. 

Continuance of heavy case receipts and funding limitations in the foreseeable future 

will require the Board to consider adoption of further alternative means for processing appeals, 

to the fullest extent Possible under the Civil Service Reform Act of 1978. 

Office of Appeals 

Once a regional Office issues a decision, termed an initial decision the appellant or the 

agency can petition the Board itself for a review of the decision or the Board can move to 

review the decision on its own initiative. 

The petitions for reviews as they are known, are handled by the Board’s Office of 

Appeals, which reviews the petitions and recommends action and drafts appropriate wording 

for the Board's consideration. As happened in most offices of the Board in 1981, the Office of 

Appeals saw an increase in workload while staff size remained constant. In 1981, the Office of 

Appeals prepared 1,161 decisions compared to 1,080 the previous year. (A breakdown of 

these figures is available in the appendix.) 
-8 ­

Significant Decisions-Of the Board 

One of the major undertakings of the Board itself has been to take an active role in the 

issuance of leading decisions in appeals Cases. It is the firm policy of the Board that one of 

the most important services it can provide to agencies employees and its own presiding 

officials is the Issuance of precedential opinions applying and interpreting the provisions of the 

Act. 'It is only through this method that all parties will be provided with that guidance 

necessary to direct their activities. To this end, the Board has issued a number of decisions 

this year which have purposefully addressed subjects of major importance and thus have 

became a guide for future cases of a similar mature. Among the significant decisions issued 

by the Board during 1981 are the following: 

Chavez v. OPM, DA831L09003 (5/28/81), which resolved the issues of who has the burden of 

proof in employee-initiated disability retirement cases and the standard of proof applicable to 

such cases. The Board held that the employee bears the burden of proof by a preponderance 

of the evidence and set forth a method for analyzing the evidence in a group Of such cases. 

Merritt v. Department of Justice, PHO75209058 (6/8/81), was the lead case in which the Board 

examined employee off-duty misconduct. The principal issue was what kinds of conduct off 

the job would justify agency action against an employee. Several other cases issued in 

reliance on Merritt have refined and applied its tests to a variety of factual circumstances. 

Ruzek v. GSA, SL07520901T (8/20/81), held that alcoholism or drug abuse, constitutes a 

handicapping condition under the Rehabilitation Act of 1973 and found that it is a prohibited 

personnel practice to discriminate because of such handicapping conditions and set forth the 

requirements an agency must follow before taking action against an employee with one of 

these handicaps. 

Douglas v. VA, AT075299006 (4/10/81), considered the authority for, and the scope of, Board 

review of agency selected penalties, the responsibility of agency officials when selecting a 

penalty, and the methods and order of proof as to such issuesGerlach v. FTC, DC07528010020 (12/15/81), adopted the "but form test in cases where it is 

determined that an adverse action was taken against an employee for legitimate reasons as 

well as in reprisal for a protected activity. 
-9 ­

Ogden Air Logistics Center and AFGE, B07128010017, (6/9/81), found that the procedures 

established pursuant to 5 U.S.C. 7121(a)(1) are generally the exclusive procedures for 

resolving negotiable grievances, but that the Board has authority to review an arbitrator's 

decision if the employee has been affected by prohibited discrimination (as set forth in 5 

U.S.C. 2302(b)(1)) and originally could have appealed the matter to the Board under 5 U.S.C. 

7702. 

Cuellar v. USPS, SF075299045 (11/13/81)9 held that OPM regulations providing for the 

emergency suspension of employees during the notice period of a proposed adverse action 

exceed the scope of the *crime provision" contained in 5 U.S.C. 7513(b)(1). 

Stalkfleet v. USPS, SL075209055 (6/10/81), analyzed an agency’s duty to handicapped 

employees under the Rehabilitation Act of 1973, as well as the extent of the Postal Service’s 

obligation under its national agreement with the Postal unions to accommodate a handicapped 

employee. 

Borninkhof v. Department of Justice , SF075209008 (2/27/81), examined the extent to which 

hearsay evidence may constitute evidence in support of an agency’s action and the factors 

which may properly -be considered in determining its adequacy and reliability. ' 

Scott v. Kayl, SF0752090153 (9/28/81), held that in order to determine whether an 

appointment to a position in the federal service occurred, all of the underlying circumstances 

must be considered rather than Just whether or not a particular form has been executed. 

Stewart v.- OPM, DC073109001 (9/30/81), discussed the scope of review by the Board in an 

appeal from an applicant for employment who had been given an adverse suitability 

determination. The Board held that such an applicant has the right to a de novo hearing in 

connection with the appeal. 

McClintock v. VA, AT315HO9046 (6/1/81), adopted for cases in which a probationary 

employee alleges marital .,Status discrimination as the basis for Board jurisdiction, the same 

burden of establishing a prima facie case as that applicable to an employee alleging as an 

affirmative defense discrimination prohibited by Title VII of the Civil Rights Act of 19649 as 

amended. 
-10­

Powell v. Treasury, DC075299039 (10/2/81), held that an award of attorney fees to a unionpaid counsel, who must turn the award over to the union, is limited to the actual Cost to the 

union of providing the representation. 

Miller v. OPM, CH83lL8010103 (8/25/81), decided that the granting of disability retirement 

benefits solely as a sanction against OPM would result in an unlawful default judgment against 

the United States and could not properly be consummated. 

George Ashford v. Department of Justice, DA075299039 (6/i/81), examined the employee’s 

rights during the pre-adverse action, investigatory stage of a proceeding and found no right to 

counsel under the Sixth Amendment or the due process clause, and a "Miranda" right to 

counsel only in custodial interrogations. It also held that an employee may not refuse to 

answer questions simply because the agency fails to advise him of the charges being 

investigated, but that the privilege against compulsory self-incrimination is applicable if the 

employee has not been given (expressly or by operation of law) immunity from use of his 

statements in a criminal proceeding. 

Bolling v. Air Force, NY07528090034 (12/28/81), discussed the scope of review the Board will 

give to an employee's past disciplinary record where that record is relied on by the agency to 

enhance the penalty in a new adverse action. The Board adopted for its Use the test applied 

by the former Civil Service Commission in adjudicating cases that came before it. That test is 

(1) whether or not the employee was informed of the action in writing, (2) whether the 

employee was given an opportunity to dispute the action with a higher level than the authority 

who imposed 'the disciplines and (3) whether the action made a matter of record. 

T. The Activities of the Office of General Counsel 

Litigation Activities 

Litigation for the Board is handled by the Office of General Counsel (OGC) and 

includes defending final decisions by the Board that an appellant chooses to appeal to the 

Federal courts, as well as original jurisdiction cases. 

1. Employee Appeals Cases--During 1981, 193 cases were filed seeking judicial 

review of Board decisions in employee appeals. The employing agency, ordinarily the sole 

respondent in such cases, is represented by the U.S. Attorney or the 
Department of Justice- However, OGC attorneys advise Justice how the case should be 

handled. Moreover, the Board, represented by OGC, intervened in 12 of these appeals during 

1981 because they presented significant challenges to Board rulings on such issues as Board 

jurisdiction, the burden of proof in job performance cases, the authority of the Special Counsel, 

the standard for award of attorney fees to appellants under the Reform Act and the 

relationship between employee off-duty misconduct and the statutory efficiency of the service" 

standard for adverse actions. In the 87 court decisions reviewing Reform lot decisions by the 

Board or its regional offices during 1981, the outcome was: . 

58 MSPB decisions affirmed

 9 dismissed for lack of jurisdiction or want of prosecution 

·9 petitions for review withdrawn 

·2 settled 

·9 remanded to MSPB for further proceedings 

2. Original Jurisdiction Cases -- The Board is the statutory respondent when its 

decisions under Chapter 12 of Title 5 (corrective actions,. disciplinary actions, and review of 

OPM regulations) are challenged in court. In June, two related appeals in this category were 

argued by OGC in the U.S. Court of Appeals for the District of Columbia. These appeals 

presented fundamental questions Of first impression under the Civil Service Reform Act, 

including the statutory role of the Special Counsel in a corrective action proceeding, the 

availability of attorney fee awards in such proceedings and the burden of proof when reprisal 

for protected activities is alleged. 

3. Other actions -- During 1981, the office successfully defended Or supervised 

the defense of several suits seeking to compel or restrain action by the Board or the Special 

Counsel. One such suite currently pending, also seeks Board predecisional memoranda under 

the Freedom of Information and Privacy Acts. 

Seven suits for damages against the Board members or other officials were pending or 

decided in 1981. The office participated in the defense of these actions, which included Oliver 

v. MSPB, _et al., No. 80-1918 (D.D.C., Oct. 13, 1981); this action was dismissed because of 

the absolute immunity of Board members from personal liability for their official acts as 

administrative adjudicators. 
-12­

Special Counsel Cases 

The Office advises the Board when exercise of its authority under Chapter 12 to stay 

personnel actions resulting from prohibited personnel practices is invoked, and whether to 

order corrective action or to impose disciplinary sanctions when any of these actions are 

requested by the Special Counsel. 

In 1981, the Board issued several orders staying personnel actions which the Special 

Counsel alleged were taken as a result of one or more prohibited personnel practices, 

including discrimination on the basis of conduct which does not adversely affect the 

performance of the employee or others, discrimination on the basis of sex and national origin,. 

retaliation for whistleblowing and reprisal for the exercise of appeal rights. The Board also 

ruled in response to a stay request that it has jurisdiction to stay the removal of a career 

appointee to the Senior Executive Service (SES) from that SES Position to a non-SES Civil 

service position. 

The Board also considered requests for corrective action in five different cases 

involving such issues as retaliation for Whistleblowing discrimination on the basis of political 

affiliation sex, age and national origin, and reprisal for the exercise of appeal rights. Three of 

these cases were referred to the Board’s Office of Administrative Law Judges for processing 

and the Issuance of recommended decisions. One was dismissed at the request of the 

Special Counsel. . Recommended decisions have been issued in two cases, but no final 

decisions were issued in corrective action cases in 1981. 

Review of OPM Regulations 

The Board’s original jurisdiction also includes its authority under 5 U.S.C. 1205(e) to 

review rules and regulations of the Office of Personnel Management in order to determine 

whether, on its face or as implemented, any such provision would require the commission of a 

prohibited personnel practice. This role of the Board is intended to act as a check on the 

broad regulatory powers of the Office of Personnel Management. The Board may undertake a 

regulation review on its own motion, at the request of the Special Counsel, or at the request of 

any other interested person. 

The role of OGC in this process is to review OPM regulations, in concert with the 

Board's Office of Merit Systems Review and Studies, both independently and in response to 

requests for review from the Special Counsel or others to determine whether there is 

reasonable cause to commence a formal Section 1205(e) review proceeding. Once a formal 

review is undertaken the office advises the Board on procedural and other 
-13­

matters such as discovery, and prepares any necessary orders and opinions for action by the 

Board. 2/ Two of the five reviews undertaken resulted in final decisions in 1981t one has been 

stayed to permit OPM voluntarily to amend the regulation at issue, and two are pending. 

VI. Activities of the Office of Merit Systems Review and Studies 

Special Studies 

The Board sent several major reports on the health of the merit system to the Congress 

and the President during 1981. These reports, prepared by the Office of Merit Systems 

Review and Studies (MSRS) under the mandate of 5 U.S.C. 1205(a)(3) which requires the 

Board to conduct special studies of the civil service and other merit systems, included: 

• Sexual Harassment in the Federal Workforce: Is it a Problem? This report, based on a 

survey of approximately 23,000 Federal employees nationwide, was the first 

comprehensive study of this subject ever conducted on a national scale. It included 

extensive findings on the views of Federal employees about sexual harassment 

including: the extent of harassment in the workplace, description of the characteristics 

Of victims and perpetrators of sexual harassment, the estimated dollar Cost of this type 

of harassment and a discussion of the perceptions and responses Of Victims to the 

incidents and the impact on their behavior. The report includes a discussion of the 

policy implications of the findings, a set of recommendations, and a survey of actions 

being taken by agencies to reduce the occurrence Of sexual harassment. This report 

was originally undertaken at the request of the Subcommittee on Investigations Of the 

House Committee on Post Office and Civil Service. 

• Whistleblowing and the Federal Employee. This study examined "Whistleblowing" and 

the reprisals that are sometimes taken against Federal employees. The study was not 

intended to measure the extent of fraud, waste or mismanagement in government, 

although the observations of the surveyed employees shed considerable light on that 

subject. Questionnaires 

2/ Because of its work in this area, the office also provides advice in appellate cases where 

the validity of an OPM regulation is at issue. 
-14 ­

were sent to approximately 13,000 workers employed in the 15 agencies with Offices of 

Inspectors General. The report assesses the extent of employees' awareness of illegal 

and wasteful activities and traces what those employees did (or failed to do) with that 

information, and what, if anything, resulted. The report also assesses employee 

awareness of, and confidence in, the channels which were intended to encourage their 

reportings and protect them from reprisal. 

• Status Report on Performance Appraisal and Merit Pay Among Mid-level Employees. 

This report, based on a questionnaire survey distributed to approximately 4,900 aidlevel employees, sets forth the collective firsthand experiences and viewpoints of those 

employees concerning the functioning of the new Merit Pay and performance appraisal 

systems- It also reports on agencies' efforts to develop performance standards in a 

timely fashion. 

• The Senior Executive Service. This report examines the impact of the pay incentives 

promised in the CSRA to Senior Executives and explores what they thought of their 

incentive value, the equity of their distribution and whether these executives felt the 

various incentives were sufficient to retain highly competent executives. It R130 

examines the efficacy of the statutory safeguards against politicization. The findings 

were based on a comprehensive survey of approximately 1,000 career SES members. 

• Study of MSPB Decisions During 1980. This study analyzed the Board's processing of 

appeals during FY 1980 and contains extensive data on the average processing time, 

the number of appeals received and decisions issued, the number of hearings held. 

agency reversal rates, and appellant reversal ratesReport on Significant Actions of the Office of Personnel Management 

In June 1981, the Board issued its first annual report to Congress and the President on 

the significant actions of OPM. This report, required by statute, examined programs and 

policies initiated by OPM to see if they resulted in promoting the merit principles and prevented 

prohibited personnel practices. MSRS staff interviewed the Directors of Personnel at each 

cabinet level agency, attended extensive briefings set up for the Board by OPM staff, met with 

many groups who had been observers of OPM's actions and conducted a nationwide survey of 

personnel professionals in grades 13 through 15. 
-15­

This report is distinctive from others produced by agencies (including the General 

Accounting Office and OPM itself) in that it is the only report generated within the Executive 

Branch which is Specifically concerned with the relationship between OPM's programs and the 

health of the merit System- It is also the only report within the Executive branch by an agency 

that has no vested interest in the programs and issues upon which it reports. 

Projected Studios for 1982 

Budgetary restraints have prevented the 'Board from implementing through the Office 

of Merit Systems Review and Studies the comprehensive merit systems oversight the Civil 

Service Reform Act originally contemplated. For example, the Office has been unable to 

conduct the number of in-depth, on-site agency-specific follow-ups of the many governmentwide insights its studies have revealed as might have been appropriate. 

Nevertheless, the Office will continue to produce additional reports including the 

following to be released in 1982: 

• A study on Reduction in Force. In 1981, MSRS initiated a study on RIF in the Federal 

government. This study will examine the problems associated with this process-- one of 

the Most important merit issues to be monitored this year. Two questionnaires were 

sent to employees, one to a random sample of Federal employees and another to 

personnel professionals. MSRS staff also conducted some On-site work, conducting 

interviews with knowledgeable people in organizations in stages of the RIF process. 

An interim report, based on the on-site work will be released soon. A second report 

based on the results Of the survey will be released later in the year. 

• Report on the Significant Actions of the OPM during 1981. This report will look at how 

the specific OPM policies and programs during the previous year supported or 

detracted from the merit principles and prohibited personnel practices. In addition 

to following up on the issues pending from last year’s reports the report will focus on 

two or three new critical issues. 

• Report on Appeals Decisions by MSPB, 1981. This report is a continuation of the 

annual review of the Board's appeals processing, the largest of the Board’s functions 

for 1981. 
-16 ­

• Monograph Series. The Office has built up a unique base of objective data about the 

operations of the merit system through its surveys of key groups of Federal employees 

A series of monographs based on this data base will be released during 1982. Each 

monograph will address in an intensive way such topics as the occurrence of prohibited 

personnel practices, whether poor performers are removed from the service, the quality 

of supervision in the Federal service, the morale of Federal employees, and factors of 

productivity. 

In addition to these reports, the Office plans to conduct several new studies, the results 

of which will quite likely also be released during 1982. These studies-will include an omnibus 

survey of Federal employees to follow-up on key issues identified in past studies, an expanded 

follow-up on the reprisal study, and a program to establish comparative data by which 

experiences in the private sector may be related to the Office's findings concerning Federal 

employees. 
APPENDIX

TO THE 

THIRD ANNUAL REPORT 

OF THE 

U.S. MERIT SYSTEMS PROTECTION BOARD 
APPENDIX I 

STATISTICAL SUMMARY

MERIT SYSTEMS PROTECTION BOARD APPEALS

Total Cases to Adjudicate: 

CY 1980 CY 1981 

7,641 9,444 

11,054 (ATC) 

20,498 

Cases Processed: 

CY 1980 CY 1981 

5,544 7,026

 128 (ATC) 

7,154 

Cases Pending at Year's End: 

CY 1980 CY 1981 

2,095 2,418 

10,926 (ATC) 

13,344 

Cases to Adjudicate 1980/1981: 

Adverse Actions 

CY 1980 CY 1981 

3,178 4,363 

11,054 (ATC) 

15,417 

Unsatisfactory Performance 

CY i980 CY 1981 

74 28 
RIF 

CT 1980 

727 

-2­

CY 1981 

19739 

Mixed (AA, RIF, Other) 

CY 1980 

1,021 

CY 1981 

1,359 

Disability Retirement 

CY 1980 

1,068 

CY 1981 

753 

Other Retirement 

CY 1980 

258 

CY 1981 

249 

All Others -(Probationers, ALOC, Restoration, Employment Practices, Attorney 

Fees, Miscellaneous) 

CY 1980 CY 1981 

1,315 2,317 
Appendix II 

APPEALS RECEIVED, DECIDED AND COMPLETED 

WITHIN 120 DAYS IN 1981 

As required by 5 U.S.C. T701(i)(2), here presented is the Merit Systems Protection 

Board’s report to Congress on the number of appeals submitted to the Board- during Calendar 

Year 1981, the number processed to completion during that year, and the number not 

completed by the date originally announced and the reasons therefor. Pursuant to 5 U.S.C. 

7701(i)(l)t the Board has announced that all appeals processed under the appellate 

procedures Of 5 U.S.C. 7701 and 7702 will be decided within 120 days of the filing of the 

appeal. 44 Fed. Reg. 9446 (1979). 

In the 1981 Calendar Year, 18,403 appeals were filed with the Board’s eleven regional 

Offices- During this same period of time, 7,154 appeals were processed to completion. One 

hundred and forty-nine (149) appeals were not decided within the Board’s 120-day time limit. 

Of these 149 cases, 62 were completed within the 30-day period following the 120th day, and 

only 87 required the Board, pursuant to 5 U.S.C. 7701(i)(1), to publicly announce a new 

completion date. 

Our records show that the reasons for the processing delays in the 149 overage cases 

fall into the following general categories- Ten cases were delayed because of the illness Of 

one of the parties, a representative or the assigned presiding official of the Board. In 59 

appeals, a number of which the Board assigned to its Office Administrative Law Judges, the 

complexity or sensitivity of the case and the extensive discovery and lengthy hearing or 

decision that resulted prolonged the processing time. Hearing Postponements or continuance 

granted because of a showing of good cause were responsible for the delay in five cases- In 

another five cases the 120-day time limit was exceeded because of problems unique to the 

processing of 4F appeals from overseas locations. The increased travel time involved in these 

cases and the frequent delays encountered in receiving and exchanging files and other 

documents do Occasionally impede the presiding officials' ability to issue decisions by the 

required deadline. Temporary staffing and workload problems with regard to the professional 

and support personnel of some of the regional offices were responsible for the largest number, 

70, of overage cases. 
-2­

Taking into account the cases already pending at the beginning of the year, as well as 

those filed during the latter months of 1981 that had 1982 deadlines, the Board had before it 

7,973 appeals in 'which the 120-day time limit expired during the 1981 Calendar Year. In only 

149 of those appeals was the 120-day standard not met. Consequently, in over 98 percent of 

the cases with 1981 deadlines, the Board completed action within 120 days of the filing of the 

filing. This record demonstrates the Board's continuing commitment to the expeditious 

processing of appeals mandated by the 1978 Civil Service Reform Act. 
APPENDIX III 

HEADQUARTERS REFORM ACT CASE REPORT 

Total Board Petitions for Review 

CALENDAR YEAR 1981 

December 28, 1980 through December 26, 1981 

TYPE OF APPEAL On Hand Received Issued Canceled Pending 

� 

Adverse Action 549 1,075 700 29 895 

Unsatisfactory

 Performance 11 16 13 0 14 

Reduction-in-Force 62 184 88 5 153 

Retirement 87 264 150 14 157 

All Other - Total 105 303 180 27 201 

Probationer 28 80 63 5 40 

Accepted Level of 

Competence 33 84 46 5 66 

Short Suspension 2 5 3 0 4 

Suitability 4 0 4 0 0 

Restoration to Duty 17 39 25 1 30 

Employment Practices 6 17 3 1 19 

All Other 15 78 36 15 42 

SUBTOTAL 814 1,842 1,161 75 1,420

 Old System Cases 202 210 235 2 175

TOTAL 1,016 2,052 1,396 77 1,595