U.S. Merit Systems 

Protection Board 

Annual Report 

for Fiscal Year 1998 

Submitted to the President and 

the Congress of the United States
U.S. Merit Systems Protection Board 

Washington, D.C. 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

In accordance with 5 U.S.C. § 1206, we are pleased to submit the Twentieth Annual Report of the U.S. Merit 

Systems Protection Board. The report reviews the significant activities of the Board during fiscal year 1998, including the 

Federal employee appeals and other cases decided by the Board. 

The Board and its regional and field offices closed 10,376 cases during fiscal year 1998. The Board's 

administrative judges decided 8,442 appeals, stay requests, and addendum cases. The Administrative Law Judge at 

headquarters issued initial decisions in 15 cases brought by the Special Counsel and proposed agency actions against 

administrative law judges. The 3-member Board decided 1,887 cases under its appellate jurisdiction, principally petitions 

for review (PFRs) of its judges' initial decisions. The Board also completed action on 32 cases arising under its original 

jurisdiction, including Special Counsel cases, actions against administrative law judges, and requests to review regulations 

of the Office of Personnel Management (OPM). 

The average time to process appeals and addendum cases in the regional and field offices was 108 days. The 

average processing time at Board headquarters for PFRs of initial decisions by judges was 205 days. This means that, on 

average, a case processed through both levels of the Board was completed in about 10 months. Timely processing is 

important because most of the cases that come to the Board are appeals of agency personnel actions. Early resolution of 

these disputes benefits all parties, as well as the taxpayers who fund Government activities. 

One important measure of the Board's performance of its statutory mission is the extent to which its decisions are 

upheld by its principal reviewing court, the U.S. Court of Appeals for the Federal Circuit. Of the 450 final Board decisions 

reviewed by the court in fiscal year 1998, 92 percent were unchanged by the court's decisions. 

The Board also has a statutory responsibility to conduct studies of the merit systems and to review the significant 

actions of OPM. In fiscal year 1998, the Board issued three reports of such studies. 
U.S. MERIT SYSTEMS PROTECTION BOARD

TABLE OF CONTENTS

Board Mission and Jurisdiction 1 

Board Members 4 

Board Organization 6 

Regional and Field Office Jurisdictions 8 

Fiscal Year 1998 Case Processing - Statistical Highlights 9 

Adjudication 15 

Litigation 23 

Studies 27 

Administration 30 

For Additional Information 34 

Customer Service Standards 35 

ANNUAL REPORT FOR FISCAL YEAR 1998
U.S. MERIT SYSTEMS PROTECTION BOARD

BOARD MISSION AND JURISDICTION

MISSION

The U.S. Merit Systems Protection Board 

(MSPB) was established by the Civil Service 

Reform Act of 1978 (CSRA), Public Law 95-454, 

as a successor agency to the Civil Service 

Commission. It is an independent, quasi-judicial 

agency in the Executive Branch that serves as the 

guardian of Federal merit systems. 

The Board’s mission is to ensure that 

Federal employees are protected against abuses by 

agency management, that Executive Branch 

agencies make employment decisions in 

accordance with the merit system principles, and 

that Federal merit systems are kept free of 

prohibited personnel practices. The Board 

accomplishes its mission by: 

• Hearing and deciding employee appeals from 

agency personnel actions and other matters 

under the Board’s appellate jurisdiction; 

• Hearing and deciding cases brought by the 

Special Counsel involving alleged abuses of 

the merit systems, and other cases arising 

under the Board’s original jurisdiction; 

• Conducting studies of the civil service and 

other merit systems in the Executive Branch 

to determine whether they are free of 

prohibited personnel practices; and 

• Providing oversight of the significant actions 

and regulations of the Office of Personnel 

Management (OPM) to determine whether 

they are in accord with the merit system 

principles and free of prohibited personnel 

practices. 

JURISDICTION 

Appellate Jurisdiction

Agency personnel actions that Federal 

employees may appeal to the Board include: 

adverse actions (removals, suspensions of more 

than 14 days, reductions in grade or pay, and 

furloughs of 30 days or less), performance-based 

removals or reductions in grade, denials of withingrade increases, certain reduction-in-force (RIF) 

actions, denials of restoration to duty or 

reemployment rights, and removals from the 

Senior Executive Service (SES) for failure to be 

recertified. Determinations by OPM in 

employment suitability and retirement matters are 

also appealable to the Board. 

When an issue of discrimination 

prohibited by the Civil Rights Act of 1964 and 

other anti-discrimination laws is raised in 

connection with an appealable personnel action, 

the Board has jurisdiction over both the appealable 

action and the discrimination issue. Such appeals 

are termed “mixed cases.” In these cases, an 

appellant may ask the Equal Employment 

Opportunity Commission (EEOC) to review the 

final decision of the Board. If the EEOC disagrees 

with the Board’s decision on the discrimination 

issue, the case is returned to the Board. The Board 

may concur with EEOC, affirm its previous 

decision, or affirm its previous decision with 

modifications. If the Board does not concur in the 

EEOC decision, the case is referred to a Special 

Panel for a final decision. (A Special Panel is 

convened when needed and is composed of a 

Chairman appointed by the President, one member 

of the Board, and one EEOC commissioner.) 

Under the Whistleblower Protection Act 

of 1989 (WPA), personnel actions--including 

ANNUAL REPORT FOR FISCAL YEAR 1998

1
U.S. MERIT SYSTEMS PROTECTION BOARD

appointments, promotions, details, transfers, 

reassignments, and decisions concerning pay, 

benefits, awards, education, or training--that are 

not normally appealable to the Board may be 

appealed to the Board under certain circumstances. 

Such actions may be appealed to the Board only if 

the appellant alleges that the action was taken 

because of whistleblowing, and if the appellant 

first filed a complaint with the Special Counsel 

and the Special Counsel did not seek corrective 

action from the Board. 

In recent years, the Board’s jurisdiction 

has been extended. Under the 1994 Uniformed 

Services Employment and Reemployment Rights 

Act (USERRA), the Board has jurisdiction over 

complaints alleging a violation of Chapter 43 of 

Title 38, relating to the employment and 

reemployment rights of persons who have served 

in the uniformed services. The 1996 Presidential 

and Executive Office Accountability Act 

authorizes appeals to MSPB by employees in the 

Executive Office of the President based on 

violations of a number of workplace laws, 

including the Family and Medical Leave Act, Fair 

Labor Standards Act, Employee Polygraph 

Protection Act, and Worker Adjustment and 

Retraining Notification Act, as well as USERRA. 

With the enactment of the Veterans Employment 

Opportunities Act of 1998, a preference eligible 

employee may file an appeal with MSPB based on 

a violation of any law or regulation relating to 

veterans’ preference, after first filing a complaint 

with the Department of Labor (DOL) and allowing 

DOL 60 days to try to resolve the matter. In 

addition, a violation of veterans’ preference is now 

a prohibited personnel practice, allowing the 

Special Counsel to petition the Board to order 

disciplinary action against an employee who 

commits such a violation. 

For the Board to have jurisdiction over an 

appeal, it must possess jurisdiction over both the 

action and the individual filing the appeal. The 

employees and others (e.g., applicants for 

employment, annuitants in retirement cases) who 

may appeal specific actions vary in accordance 

with the law and regulations governing the 

specific action. For some actions, classes of 

employees, such as political appointees, and 

employees of specific agencies are excluded. 

With respect to adverse actions, which 

account for almost half of all appeals to the Board, 

the following categories of employees have appeal 

rights: (1) employees in the competitive service 

and preference eligible employees in the excepted 

service who have completed their probationary 

period; (2) non-preference eligible employees in 

the excepted service (excluding those in the Postal 

Service and certain other agencies) who have 

completed two years current continuous service in 

an Executive agency; and (3) non-preference 

eligible supervisors and managers in the Postal 

Service. 

Original Jurisdiction 

Cases that arise under the Board’s original 

jurisdiction include: 

• Corrective and disciplinary actions brought 

by the Special Counsel against agencies or 

Federal employees who are alleged to have 

committed prohibited personnel practices, or 

to have violated certain civil service laws, 

rules or regulations; 

• Requests for stays of personnel actions 

alleged by the Special Counsel to result from 

prohibited personnel practices; 

• Disciplinary actions brought by the Special 

Counsel alleging violation of the Hatch Act; 

• Certain proposed actions brought by agencies 

against administrative law judges; 

• Requests for review of an OPM regulation or 

of an agency’s implementation of an OPM 

regulation; and 

• Informal hearings in cases involving 

proposed performance-based removals from 

the Senior Executive Service. 

Judicial Review

With two exceptions, judicial review of 

final Board decisions in both appellate and 

original jurisdiction cases lies in the U.S. Court of 

Appeals for the Federal Circuit. The exceptions 

are: 

• Board decisions in mixed cases may be 

appealed to an appropriate U.S. district 

ANNUAL REPORT FOR FISCAL YEAR 1998

2
U.S. MERIT SYSTEMS PROTECTION BOARD

court. (A Special Panel decision also may 

be appealed to an appropriate U.S. district 

court.) If review of all issues except the 

discrimination issue is requested, however, a 

mixed case appellant may elect review by 

the Federal Circuit. 

• In Hatch Act cases involving State or local 

Government employees, judicial review lies 

first in the U.S. district courts and then in 

the regional courts of appeals. 

The Director of OPM may petition the 

Board for reconsideration of a final decision. The 

Director also may seek judicial review in the 

Federal Circuit of Board decisions that have a 

substantial impact on a civil service law, rule, 

regulation, or policy. 

ANNUAL REPORT FOR FISCAL YEAR 1998

3
U.S. MERIT SYSTEMS PROTECTION BOARD

BOARD MEMBERS

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

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

political party. Board members are appointed by the President, 

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

terms. 

CHAIRMAN

BEN L. ERDREICH became Board Chairman on 

July 2, 1993, following his nomination by President Clinton 

and confirmation by the Senate. His term appointment 

expires March 1, 2000. Previously, he served for 10 years in 

the U.S. Congress as the representative of the 6th District of 

Alabama. He was a member of the Committee on Banking, 

Finance and Urban Affairs and chaired its Subcommittee on 

Policy Research and Insurance. Mr. Erdreich was a Member 

of the Jefferson County (Alabama) Commission from 1974 to 

1982. Prior to that, he was a partner in the firm of Cooper, 

Mitch & Crawford, Attorneys, in Birmingham, Alabama. He 

served in the Alabama House of Representatives from 1970 

to 1974. He is a graduate of Yale University and received his 

J.D. degree from the University of Alabama School of Law. 

He is admitted to the Alabama and District of Columbia bars 

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

Alabama, and Birmingham bar associations. 

ANNUAL REPORT FOR FISCAL YEAR 1998

4
U.S. MERIT SYSTEMS PROTECTION BOARD

VICE CHAIRMAN

BETH S. SLAVET took the oath of office as Vice 

Chairman and member of the U.S. Merit Systems Protection 

Board on August 15, 1995, following her nomination by 

President Clinton and confirmation by the Senate. Her term 

appointment expires March 1, 2002. Ms. Slavet served as 

Labor Counsel to the Committee on Labor and Human 

Resources of the U.S. Senate from March 1993 until January 

1995. Previously, she was Legislative Counsel and Staff 

Director for U.S. Representative Chester Atkins (D-MA). 

From 1984 to 1992, Ms. Slavet was an attorney in private 

practice in Washington, DC, representing public and private 

sector unions and employees. Prior to that, she served as the 

staff attorney to the American Federation of Government 

Employees Local 1812 in Washington, DC. She is a graduate 

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

Washington University School of Law. She is admitted to the 

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

and District of Columbia bar associations. 

MEMBER

SUSANNE T. MARSHALL was sworn in as Member 

of the Board on November 17, 1997, following her nomination 

by President Clinton and confirmation by the Senate. Her term 

appointment expires March 1, 2004. She served on the staff of 

the Committee on Governmental Affairs of the United States 

Senate, with jurisdiction over all Federal employee personnel 

issues, from December 1985 until her appointment. During that 

time, she served three distinguished members of the Senate--

Chairman/Ranking Republican William V. Roth, Jr., of 

Delaware (1985-1995), Chairman Ted Stevens of Alaska (1995-

1996), and Chairman Fred Thompson of Tennessee (1997). 

Before that, she held positions in the House of Representatives 

as Republican Staff Assistant to the Committee on Government 

Operations (1983-1985) and as Legislative Assistant on the 

staff of a Member from Georgia (1981-1982). She has also 

worked in the private sector while living in Georgia (1976-

1981) and for a trade association in Washington, DC (1972-

1976). She attended the University of Maryland in Munich, 

Germany, and the American University. 

ANNUAL REPORT FOR FISCAL YEAR 1998

5
U.S. MERIT SYSTEMS PROTECTION BOARD

BOARD ORGANIZATION

The Chairman, Vice Chairman, and 

Member adjudicate the cases brought to the 

Board. Each has his/her individual office. The 

Chairman, by statute, is the chief executive and 

administrative officer of the Board. Office 

heads report to the Chairman through the Chief 

of Staff. 

The Office of Regional Operations

provides leadership to the MSPB regional 

offices in carrying out their adjudicatory and 

administrative functions. The five regional 

offices (including five field offices) receive and 

process initial appeals and related cases filed 

with MSPB. Administrative judges in the 

regional and field offices may also adjudicate 

corrective actions brought by the Special 

Counsel when such cases are reassigned from 

headquarters. The judges are responsible for 

adjudicating assigned cases and for issuing fair 

and well-reasoned initial decisions. 

The Office of the Administrative Law 

Judge adjudicates and issues initial decisions in 

Hatch Act cases, corrective and disciplinary 

action complaints brought by the Special 

Counsel, and proposed agency actions against 

administrative law judges. The Administrative 

Law Judge is authorized to decide initial Special 

Counsel stay requests under authority delegated 

by individual Board members and to hold 

informal hearings in performance-based 

removals from the SES. The Administrative 

Law Judge also adjudicates and issues initial 

decisions in MSPB employee appeals, appeals 

involving classified information affecting 

national security, and other cases assigned by 

the Board. 

The Office of Appeals Counsel

prepares proposed decisions that recommend 

appropriate action in cases where a party 

petitions for review of a judge’s initial decision 

and in all other cases decided by the 3-member 

Board, except for those cases assigned to the 

Office of the General Counsel. The office 

conducts legal research and submits proposed 

opinions to the Board for final adjudication. It 

also conducts the Board’s petition for review 

settlement program, processes interlocutory 

appeals of rulings made by judges, makes 

recommendations on reopening cases on the 

Board’s own motion, and provides research and 

policy memoranda to the Board on legal issues. 

The Office of the Clerk of the Board

receives and processes cases filed at Board 

headquarters, rules on certain procedural 

matters, and issues the Board’s Opinions and 

Orders. The office serves as the Board’s public 

information center, including providing 

information on the status of cases, distributing 

copies of Board decisions and publications, and 

operating the Board’s Library and on-line 

information services. The office answers 

requests under the Freedom of Information and 

Privacy Acts at the Board’s headquarters and 

responds to all other information requests except 

those for which the Office of the General 

Counsel or the Office of Policy and Evaluation 

is responsible. The office also certifies official 

records to the courts and Federal administrative 

agencies, and manages the Board’s records and 

directives system, legal research programs, and 

the Government in the Sunshine Act program. 

The Office of the General Counsel, as 

legal counsel to the Board, provides advice to 

the Board and its organizational components on 

matters of law arising in day-to-day operations. 

Pursuant to the Board’s statutory authority under 

5 U.S.C. § 1204(i), the office represents the 

Board in litigation. It also prepares proposed 

decisions for the Board on assigned cases, 

including requests to review OPM regulations 

and cases involving enforcement of Board 

orders. The office coordinates the Board’s 

legislative policy and congressional relations 

functions; responds to requests for non-case 

related information from the White House, 

ANNUAL REPORT FOR FISCAL YEAR 1998

6
U.S. MERIT SYSTEMS PROTECTION BOARD

Congress, and the media; and produces public 

information publications and the agency’s 

annual report to the President and the Congress. 

The office also conducts the Board’s ethics 

program and plans and directs audits and 

investigations. 

The Office of Policy and Evaluation

carries out the Board’s statutory responsibility to 

conduct special studies of the civil service and 

other merit systems, including annual oversight 

reviews of the Office of Personnel Management. 

Reports of these studies are directed to the 

President and the Congress and are distributed to 

a national audience. The office disseminates 

information about the Board’s studies through 

outreach appearances, articles, and electronic 

media. The office also responds to requests 

from Federal agencies for information, advice, 

and assistance on issues that have been the 

subject of Board studies. 

The Office of Equal Employment 

Opportunity plans, implements, and evaluates 

the Board’s equal employment opportunity 

(EEO) programs. It processes complaints of 

alleged discrimination and furnishes advice and 

assistance on affirmative action initiatives to the 

Board’s managers and supervisors. 

The following administrative divisions 

operate under the supervision of the Chief of 

Staff: 

The Financial and Administrative 

Management Division administers the budget, 

procurement, property management, physical 

security, and general services functions of the 

Board. It develops and coordinates internal 

management programs and projects, including 

review of internal controls agencywide. It also 

administers the agency’s cross-servicing 

arrangements with the U.S. Department of 

Agriculture’s National Finance Center (NFC) for 

accounting and payroll services and with ABS 

(APHIS Business Services) for human resources 

management services. 

The Information Resources 

Management Division develops, implements, 

and maintains the Board’s automated 

information systems in order to help the Board 

manage its caseload efficiently and carry out its 

administrative and research responsibilities. 

C HAIRM AN VIC E C HAIRM AN

G e n e ra l C o u n se l

Eq u a l Em p lo ym e n t

C le rk o f th e Bo a rd Ad m in istra tive La w 

Jud g e Re g io n a l 

O p e ra tio n s Ap p e a ls C o u n se l Po lic y a n d 

Eva lu a tio n

Re g io n a l O ffic e s 

Atla n ta , C e n tra l, 

No rth e a ste rn , 

Wa sh in g to n , DC , 

a n d We ste rn 

M EM BER

Fie ld O ffic e s 

Bo sto n , Da lla s, 

De n ve r, Ne w Yo rk, 

a n d Se a ttle 

Fin a n c ia l a n d 

Ad m in stra tive 

Managem ent

In fo rm a tio n 

Re so u rc e s 

Managem ent

C h ie f o f Sta ff

U.S. M erit System s Protection Board

H um an R esources M anagem ent services are provided by 

U SD A's APH IS Business Services. 

Payroll and accounting services are provided by U SD A's 

N ational Finance C enter.

ANNUAL REPORT FOR FISCAL YEAR 1998

7
U.S. MERIT SYSTEMS PROTECTION BOARD

REGIONAL AND FIELD OFFICE JURISDICTIONS

Atlanta Regional Office

Alabama, Florida, Georgia, Mississippi, South 

Carolina, and Tennessee 

Central Regional Office

Illinois; Indiana; Iowa; Kansas City, Kansas; 

Kentucky; Michigan; Minnesota; Missouri; 

Ohio; and Wisconsin 

Dallas Field Office

Arkansas, Louisiana, Oklahoma, and 

Tennessee 

Northeastern Regional Office

Delaware, Maryland (except the counties of 

Montgomery and Prince George’s), New Jersey 

(except the counties of Bergen, Essex, Hudson, 

and Union), Pennsylvania, and West Virginia 

Boston Field Office

Connecticut, Maine, Massachusetts, New 

Hampshire, Rhode Island, and Vermont 

New York Field Office

New Jersey (counties of Bergen, Exxex, 

Hudson, and Union), New York, Puerto 

Rico, and Virgin Islands 

Washington Regional Office

Washington, D.C.; Maryland (counties of 

Montgomery and Prince George’s); North 

Carolina; Virginia; and all overseas areas not 

otherwise covered 

Western Regional Office

California and Nevada 

Denver Field Office

Arizona, Colorado, Kansas (except Kansas 

City), Montana, Nebraska, New Mexico, 

North Dakota, South Dakota, Utah, and 

Wyoming 

Seattle Field Office

Alaska, Hawaii, Idaho, Oregon, 

Washington, and Pacific overseas areas 

* AlsoAlaska, Hawaii, Pacific

** AlsoPuertoRico, VirginIslands

*** Washington, DC, MetropolitanArea

andOverseasnotcoveredelsewhere

Regional Office

FieldOffice

3 Dallas

3 Chicago

3 Denver

3

San

Francisco

3 Seattle*

3 Atlanta

3

Washington***

3 Boston

3 New York**

3 Philadelphia

WesternRegion

Central Region NortheasternRegion

Atlanta Region

WashingtonRegion

ANNUAL REPORT FOR FISCAL YEAR 1998

8
U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 1998 CASE PROCESSING - 

STATISTICAL HIGHLIGHTS 

CASES DECIDED BY MSPB IN FY 1998

RO/FO Decisions:

 Appeals 7,376 

 Addendum Cases 1 945 

 Stay Requests 2 121 

TOTAL RO/FO Decisions 8,442 

ALJ Decisions - Original Jurisdiction Cases 3 15 

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Appeals 1,611 

 PFRs - Addendum Cases 1 178 

 Reviews of Stay Request Rulings 0 

 Requests for Stay of Board Order 1 

 Reopenings 4 12 

 Court Remands 16 

 Compliance Referrals 64 

 EEOC Non-concurrence Cases 0 

 Arbitration Cases 5 

 Subtotal 1,887 

 Original Jurisdiction 5 32 

 TOTAL Board Decisions 1,919 

 TOTAL Decisions (Board, ALJ, RO/FOs) 10,376 

1 Includes requests for attorney fees, requests for compensatory damages (discrimination cases only), requests for 

consequential damages (whistleblower cases only), petitions for enforcement, Board remand cases, and court 

remand cases. 

2 Includes 76 stay requests in whistleblower cases and 45 in non-whistleblower cases. 

3 Initial decisions issued by ALJ. Case type breakdown: 6 OSC corrective actions (including 1 compliance case), 

7 OSC disciplinary actions (including 2 Hatch Act cases), and 2 actions against ALJs. 

4 Includes 10 cases reopened by the Board on its own motion and 2 cases where OPM requested reconsideration. 

5. Final Board decisions. Case type breakdown: 15 OSC stays; 2 OSC corrective actions, 9 OSC disciplinary 

actions, (including 7 Hatch Act cases), 3 actions against ALJs, and 3 regulation review requests. 

ANNUAL REPORT FOR FISCAL YEAR 1998

9
U.S. MERIT SYSTEMS PROTECTION BOARD

KINDS OF APPELLATE 

JURISDICTION CASES

The kinds of appellate jurisdiction cases 

in which the Board’s administrative judges issue 

initial decisions or orders are: 

• Appeal (or Initial Appeal) - A request by an 

appellant that the Board review an agency 

action.

• Stay Request - A request that the Board 

order a stay of an agency action (authorized 

only where the appellant alleges that the 

action was or is to be taken because of 

whistleblowing). 

• Motion for Attorney Fees - A request by an 

appellant who prevails in an appeal that the 

Board order the agency to pay the 

appellant’s attorney fees. 

• Request for Compensatory Damages - A 

request by an appellant who prevails in a 

mixed case appeal on the basis of 

discrimination for payment of 

compensatory damages under the Civil 

Rights Act of 1991. 

• Request for Consequential Damages - A 

request by an appellant who prevails in a 

whistleblower appeal for payment of 

consequential damages, as authorized by 5 

U.S.C. § 1221. 

• Petition for Enforcement - A request by a 

party to an appeal that the Board enforce a 

final decision or order. 

• Remand - A case returned to an 

administrative judge by the Board or court, 

after an initial decision has been issued, for 

additional processing and issuance of a new 

initial decision. 

Attorney fee cases, petitions for 

enforcement, requests for damages, and 

remands, as a group, are termed “addendum 

cases” by the Board. 

Just over 20 percent of initial appeals 

decided result in the filing of a petition for 

review at Board headquarters. Initial decisions 

in addendum cases and orders issued on stay 

requests are also subject to review by the Board. 

In addition, the Board has authority to review an 

arbitrator’s award when the subject of the 

grievance is an action appealable to the Board 

and the grievant raises a discrimination issue in 

connection with the action. The kinds of 

appellate jurisdiction cases in which the Board 

issues final decisions or orders are: 

• Petition for Review - A request by a party 

that the Board review an initial decision of 

an administrative judge. A petition for 

review may be filed with respect to an 

initial decision on an appeal or in an 

addendum case. 

• Request to Review Stay Ruling - A request 

by a party that the Board review an 

administrative judge’s order ruling on a 

stay request. 

• Petition to Review Arbitrator’s Award - A 

request that the Board review an 

arbitrator’s award where the employee has 

grieved an action appealable to the Board 

and the employee raises an issue of 

prohibited discrimination. 

• Reopening on the Board’s Own Motion - A 

case that the Board reopens on its own 

motion, to reconsider either an initial 

decision of an administrative judge or a 

final Board decision. 

• OPM Request for Reconsideration - A 

request by the Director of OPM that the 

Board reconsider a final decision. 

• Court Remand - A case returned to the 

Board by a court, after an appellant or the 

Director of OPM has sought judicial review 

of a final Board decision, for issuance of a 

new decision. Also, a case returned by a 

court where the Board has requested 

remand. 

• EEOC Non-concurrence - A mixed case 

returned to the Board by the EEOC, after 

an appellant has sought EEOC review of a 

Board decision, in which the EEOC does 

not concur with the Board decision on the 

discrimination issue. 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

• Compliance Referral - A case referred to 

the Board by an administrative judge for 

enforcement of a final Board decision or 

order, upon the administrative judge’s 

finding that a party is not in compliance. 

• Request for Stay of Board Order - A 

request by a party that a final order of the 

Board be stayed pending judicial review or 

a request for reconsideration by the 

Director of OPM. 

APPELLATE CASE PROCESSING IN 

FISCAL YEAR 1998 

Regional and Field Offices 

• Case Receipts - The regional and field 

offices received 7,752 new cases (initial 

appeals, addendum cases, and stay 

requests) in FY 1998--down about 11 

percent from the number received in FY 

1997. At the end of the fiscal year, there 

were 2,006 cases pending in the regional 

and field offices. 

• Cases Decided - The administrative judges 

decided 8,442 cases in FY 1998. This 

number includes 7,376 initial appeals and 

945 addendum cases. There were 121 

orders ruling on stay requests--76 in 

whistleblower cases and 45 in nonwhistleblower cases. 

• Disposition - Of the 7,376 initial appeals 

decided, 3,464 (47 percent) were 

dismissed. Of the dismissals, 70 percent 

were for lack of jurisdiction, agency 

cancellation of the action, or appellant 

withdrawal of the appeal; 7 percent were 

dismissed as untimely; and 23 percent were 

dismissed without prejudice to later 

refiling. The accompanying charts show 

the outcomes of appeals that were not 

dismissed and the disposition of appeals 

adjudicated on the merits. 

Settled

(2,093) 54%

Other

(23) 1% Affirmed

(1,349) 34%

Reversed

(360) 9%

Mitigated

(87) 2%

Based on 3,912 initial appeals not dismissed.

OUTCOMES OF FY 1998 APPEALS NOT DISMISSED

ANNUAL REPORT FOR FISCAL YEAR 1998

11
U.S. MERIT SYSTEMS PROTECTION BOARD

(1,349) 74%

(87) 5%

(360) 20%

(23) 1%

Based on 1,819 adjudicated initial appeals.

DISPOSITION OF INITIAL APPEALS

ADJUDICATED ON THE MERITS IN FY 1998

Mitigated

Reversed

Other

Affirmed

• Settlement Rate - Of the 3,912 appeals that 

were not dismissed, 2,093 were settled, for 

an overall settlement rate of 53.5 percent--

an increase over the settlement rate of 

about 50 percent that has prevailed for the 

last decade. The settlement rate for 

performance cases was 71 percent; for 

adverse action cases, 68 percent; and for 

denials of within-grade increases, 53 

percent. 

• Relief for Appellants - Considering the 

number of appeals settled (2,093) and those 

in which the agency action was reversed or 

mitigated (447), appellants received relief 

in 65 percent of the appeals that were not 

dismissed. Of the 1,819 appeals that were 

not dismissed or settled, 25 percent resulted 

in reversal or mitigation of the agency 

action. 

• Processing Time - The average processing 

time for initial appeals and addendum cases 

was 108 days. Of the initial appeals 

decided, 77 percent were decided within 

120 days. 

• Types of Actions Appealed - Of the initial 

appeals decided, 49 percent were appeals of 

agency adverse actions, 12 percent were 

RIF appeals, 3 percent involved 

termination of probationers, and 2 percent 

were appeals of performance-based actions. 

Retirement cases (both CSRS and FERS) 

accounted for 19 percent of total appeals 

decided, and the remainder involved other 

types of agency actions. 

• Whistleblower Appeals - There were 673 

whistleblower appeals and stay requests 

decided. Of this number, 325 were 

individual right of action (IRA) appeals in 

which the appellant was required to exhaust 

the procedures of the Office of Special 

Counsel, 272 were direct appeals to the 

Board that included an allegation of 

reprisal for whistleblowing, and 76 were 

requests to stay an action allegedly based 

on whistleblowing.

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U.S. MERIT SYSTEMS PROTECTION BOARD

• Relief for Appellants in Whistleblower 

Appeals - Of the 597 whistleblower appeals 

decided (325 IRA appeals and 272 appeals 

of otherwise appealable actions), 350 (59 

percent) were dismissed. In the other 247 

whistleblower appeals, appellants received 

relief--through settlement, reversal, or 

mitigation--in 141 (57 percent). 

• Mixed Cases - Allegations of 

discrimination were raised in 1,794 of the 

initial appeals decided; however, in 1,440 

of those appeals, the discrimination issue 

was not decided because the case was 

dismissed (876) or settled (550) or the 

allegation was withdrawn (14). The 

remaining 354 mixed case appeals resulted 

in a finding of no discrimination in 345 (97 

percent) and a finding of discrimination in 

9 (3 percent). 

Board Headquarters 

Case Receipts - At headquarters, the Board 

received 2,147 new petitions for review and 

other cases (both appellate and original 

jurisdiction) in FY 1998--up almost 18 

percent from FY 1997. At the end of the 

fiscal year, there were 1,136 cases pending. 

• Cases Decided - The 3-member Board 

decided 1,919 cases in FY 1998. Of these, 

1,611 were petitions for review of initial 

decisions on appeals, 178 were petitions for 

review of initial decisions in addendum 

cases, 98 were other appellate jurisdiction 

cases, and 32 were original jurisdiction 

cases. In addition, the Administrative Law 

Judge issued initial decisions in 15 original 

jurisdiction cases. 

• Disposition of PFRs - Of the 1,611 

petitions for review of initial decisions on 

appeals, 5 percent were dismissed, 2 

percent were settled, and 64 percent were 

denied for failure to meet the criteria for 

review. The remaining 29 percent 

consisted of 23 percent granted and 6 

percent denied but simultaneously 

reopened by the Board. 

 Outcome of PFRs Reviewed - Of the 

decisions in the 462 PFRs that were granted 

or denied but simultaneously 

Total Number of Initial Appeals: 7,376

Adverse Action

(3,600) 49%

Suitability (82) 1%

Individual Right of Action (325) 4%

CSRS Retirement: Overpayment (205) 3%

CSRS Retirement: Disability (183) 2%

CSRS Retirement: Legal (539) 7%

Performance (143) 2%

Other Appeals (593) 8%

Denial of Within Grade (44) 1%

Termination of

Probationers (294) 3%

Reduction in Force (907) 12%

FERS Retirement: (507) 7%

TYPES OF INITIAL APPEALS DECIDED IN FY 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

reopened, 13 percent affirmed the initial 

decision, 56 percent reversed it, 20 percent 

remanded the case to the administrative 

judge, and 1 percent mitigated the agency 

action. In the remaining 10 percent, the 

initial decision was vacated or the case was 

forwarded to a regional/field office for 

processing. 

• Processing Time - The average processing 

time for all petitions for review (on both 

initial appeals and addendum cases) was 

205 days. The Board processed 10 percent 

of the PFRs on initial appeals in 110 days 

or less, averaging 85 days. 

The Board headquarters case processing 

statistics for FY 1998 were affected significantly 

by a consolidation of 236 PFRs involving an 

issue of law enforcement officer (LEO) credit 

for retirement purposes. This large consolidated 

case took almost seven months to process and 

ultimately resulted in the Board reversing the 

two initial decisions. (The cases were 

consolidated in two groups at the field office 

level, one for the 81 CSRS appellants and one 

for the 155 FERS appellants.) 

 Additional fiscal year 1998 case 

processing statistics, including a breakdown of 

appeals by agency, are contained in the Board 

publication, Cases Decided by the U.S. Merit 

Systems Protection Board, FY 1998. 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

ADJUDICATION

The Board continued to issue significant 

precedential decisions during fiscal year 1998, 

including decisions applying relatively new laws 

such as USERRA and the Family and Medical 

Leave Act, and earlier laws such as the 

Whistleblower Protection Act (WPA). The 

Board also issued several important decisions 

interpreting its jurisdiction over various matters, 

its procedures, and the remedies it can order. 

UNIFORMED SERVICES 

EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT 

(USERRA)

Milner v. Department of Justice, 77 M.S.P.R. 37 

(1997) 

Under USERRA, a person has been 

denied a “benefit of employment” based on the 

performance of military service if his service 

was a motivating factor in the employer’s action, 

unless the employer can prove that the action 

would have been taken even absent that service. 

The decision sets out the USERRA exhaustion 

of remedy requirements where an appellant has 

filed a complaint with the Department of Labor. 

Roberson v. U.S. Postal Service, 77 M.S.P.R. 

569 (1998) 

Under USERRA, the Board has 

appellate jurisdiction over appeals of “any 

persons,” as defined in Subchapter II, 38 U.S.C. 

§ 4311, alleging discrimination in Federal 

employment on account of prior military service, 

including individuals who have not completed 

one year of current continuous service in the 

same or similar positions. The law sets no time 

limit for filing with the Board, and the Board 

therefore will not apply the time limit under its 

interim regulations to an appeal which arose 

prior to the regulations’ effective date. If an 

appellant supports his claim through the use of 

direct evidence of discriminatory intent, the 

administrative judge should analyze the claim in 

accordance with the USERRA standard of 

review. If an appellant supports his claim by 

circumstantial evidence, the administrative judge 

should apply the analogous burdens of proof and 

production under Title VII of the Civil Rights 

Act of 1964 for analyzing discrimination claims 

based on circumstantial evidence. 

McBride v. U.S. Postal Service, 78 M.S.P.R. 411 

(1998) 

Under USERRA, agencies are 

prohibited from denying employment because of 

a person’s “performance of [military] duty,” not 

because of any disability arising out of such 

duty. 

WHISTLEBLOWER PROTECTION 

ACT

Thomas v. Department of the Treasury, 77 

M.S.P.R. 224 (1998) 

The Board held that a disclosure that 

alleges only that an agency’s selection process 

was unfair because it considered nonmerit 

factors is not the kind of waste, fraud, or abuse 

the WPA was intended to reach. The Board also 

held that if an appellant claims in a complaint to 

the Office of Special Counsel that a disclosure 

was protected whistleblowing under a specific 

statutory category, he will be considered to have 

exhausted his OSC remedy even if he claims in 

his subsequent IRA appeal that the disclosure 

was protected but that it fell under a different 

statutory category. OSC can be expected to 

know what statutory categories might be 

implicated by any particular factual allegations, 

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U.S. MERIT SYSTEMS PROTECTION BOARD

and the law does not impose a “correct labeling” 

requirement on an individual who seeks 

corrective action before OSC for alleged 

whistleblower retaliation. 

Walton v. U.S. Department of Agriculture, 78 

M.S.P.R. 401 (1998) 

The reasoning of Currier v. U.S. Postal 

Service, 72 M.S.P.R. 191, that an appeal is not 

moot where the agency has completely 

rescinded the action if the appellant has 

outstanding, viable claims for compensatory 

damages before the Board also applies to 

outstanding claims for consequential damages 

and corrective action in an IRA appeal. 

FAMILY AND MEDICAL LEAVE ACT 

(FMLA)

Gross v. Department of Justice, 77 M.S.P.R. 83 

(1997) 

The Board restated requirements for 

entitlement to leave under the Family and 

Medical Leave Act of 1993. An agency may not 

deny leave under the FMLA where advance 

notice cannot be given; an agency may not apply 

a more restrictive leave policy than that provided 

under the law; and it may not deny leave under 

the FMLA for failure to follow its own 

procedures. Further, an employee is not 

required to invoke the FMLA explicitly in 

requesting covered leave, and the denial of leave 

to which he is entitled under FMLA is a 

violation of law. 

Young v. U.S. Postal Service, 79 M.S.P.R. 25 

(1998) 

The Board addressed the obligations of 

the parties under the FMLA, defined a “serious 

health condition” under the law, and outlined 

conditions under which an employee may use 

FMLA leave to care for a sick family member. 

In setting forth FMLA notice requirements, the 

Board held that an employee who informs the 

agency that she will be absent and states a 

reason that might justify granting leave need not 

actually verbalize that she is requesting FMLA 

leave. The death of a family member is not a 

reason for invoking the FMLA, and, while the 

Federal Employees Family Friendly Leave Act 

of 1994 provides for leave for that purpose, it 

provides no aid to this appellant because USPS 

employees are not subject to that law. More 

generally, the Board also found that an appellant 

need not prove that she was incapable of 

functioning in any aspect of her life in order to 

prove that she could not work, and that activities 

such as keeping doctors’ appointments and filing 

an OWCP claim may be consistent with medical 

incapacity. 

BOARD JURISDICTION

Park v. Department of Health and Human 

Services, 78 M.S.P.R. 527 (1998) 

The Board reconsidered its earlier ruling 

in this appeal. If an appellant is appointed by 

transfer, he retains the career-conditional status 

he had prior to the transfer, and the 

corresponding right to appeal an adverse action. 

In determining whether an employee is required 

to serve a new probationary period, the manner 

in which he was selected for an appointment is 

not dispositive of his tenure, but how he was 

appointed (transfer or new appointment) is 

dispositive. The Board distinguished cases in 

which it held that the agency’s obligation to 

notify an appellant of a change in his tenure 

upon acceptance of another appointment in the 

same agency does not apply where the 

appellant’s later appointment is in a different 

agency. 

Morales v. Department of Justice, 77 M.S.P.R. 

482 (1998) 

Because discrimination based on sexual 

preference or orientation is not prohibited sex 

discrimination under 5 U.S.C. § 2302(b)(1), the 

Board lacks jurisdiction under 5 U.S.C. § 7121 

to review an arbitration decision where the only 

discrimination claim is based on such 

orientation. 

Nordhoff v. Department of the Navy, 78 

M.S.P.R. 88 (1998) 

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U.S. MERIT SYSTEMS PROTECTION BOARD

Although a retirement is presumed to be 

voluntary, and as such, unappealable, an 

individual who retired on disability may 

establish that he was constructively removed by 

showing that there was an accommodation 

available on the effective date of his separation 

that would have allowed him to continue his 

employment and that his employing agency did 

not provide him such accommodation. In this 

case, the appellant failed to show that there was 

an accommodation available on the effective 

date of his separation that would have allowed 

him to continue his employment. 

Lomax v. Department of Defense, 78 M.S.P.R. 

553 (1998) 

This case clarifies and sets the burden of 

proof in reduction in pay cases. The general rule 

is that such a reduction is appealable, but that 

there is an exception set out at 5 C.F.R. 

§ 752.401(b)(15) for actions reducing an 

employee’s basic pay “from a rate that is 

contrary to law or regulation.” The decision 

holds that the appellant has the burden of 

establishing that the appeal is within the Board’s 

jurisdiction, that he or she makes a prima facie

showing by establishing that his or her rate of 

basic pay was reduced, and that, if the agency 

has relied on the exception to the general rule, it 

bears the burden of proving that it had originally 

set the pay rate contrary to law or regulation. 

TIMELINESS

Lacy v. Department of the Navy, 78 M.S.P.R. 

434 (1998) 

The Board held that an appellant must 

receive explicit information regarding the legal 

standard for establishing good cause for an 

untimely filing on the basis of physical or 

mental illness. Under the restated test, a party 

must: (1) identify the time period during which 

he suffered from the illness; (2) submit medical 

evidence showing that he suffered from the 

alleged illness during that time period; and 

(3) explain how the illness prevented him from 

timely filing his appeal or a request for an 

extension of time. Neither medical evidence nor 

proof of incapacity is a requirement, and cases 

holding to the contrary were overruled. This 

decision specifies that the rules of fairness--that 

appellants be fully informed of the requirements 

for establishing jurisdiction and the date on 

which their appeal period began to run--apply to 

all timeliness issues. 

Greek v. U.S. Postal Service, 78 M.S.P.R. 470 

(1998) 

In addition to restating the rule that a 

judge may not dismiss an appeal on the basis of 

untimeliness where the resolution of the 

timeliness issue depends on whether the 

appellant was subjected to an appealable action, 

the Board specifically addressed the question of 

timeliness as to alleged constructive suspension 

appeals. It held that, in such cases, where the 

agency has made no express decision that an 

appellant is to remain absent for more than 14 

days, the appeal period does not begin to run 

until 15 days later, that is, only once an appeal 

could have been filed because the “more than 14 

day” jurisdictional limitation has been met. 

MITIGATION

Stabile v. Defense Commissary Agency, 76 

M.S.P.R. 658 (1997) 

The Board set forth an agency’s 

obligations in proving compliance with a final 

order that mitigates an appellant’s removal to a 

demotion to the next highest grade position. 

The Board overruled Davis v. U.S. Postal 

Service, 67 M.S.P.R. 417, and Lucas v. U.S. 

Postal Service, 64 M.S.P.R. 172, to the extent 

that they are inconsistent in suggesting an 

entitlement to vacancies after the period between 

the date of the initial decision and the date of the 

reinstatement. There is no indefinite entitlement 

to reassignment until an appellant is placed in 

the position with the least reduction in pay under 

the Board’s final decision, but the agency does 

have an obligation to provide notice to him of 

vacant higher graded positions for which he 

qualifies and which the agency elects to fill, in 

those cases where the grade to which he is 

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U.S. MERIT SYSTEMS PROTECTION BOARD

reinstated is less than the highest grade to which 

he would be entitled under the final order. The 

agency must give the appellant priority 

consideration for such positions; the period of 

consideration for placement differs from that for 

back pay purposes. Reassignment outside the 

facility at which an appellant formerly worked is 

permissible only if the agency shows overriding 

circumstances precluding his return to a position 

at his former facility. 

REMEDIES

Markiewicz-Sloan v. U.S. Postal Service, 77 

M.S.P.R. 58 (1997) 

This is the Board’s lead decision on the 

subject of compensatory damages under the 

Civil Rights Act of 1991. The entire pattern of 

discrimination predating the appealable actions 

is to be considered in awarding compensatory 

damages; an award of compensatory damages is 

not intended to provide double recovery for an 

EEO complainant; and an appellant who 

received an OWCP award for pecuniary losses 

caused by discrimination can also claim 

compensatory damages for the non-pecuniary 

losses caused by it, even though both may be 

connected to the same injury. In addition, the 

Board deferred to and adopted EEOC’s criteria 

for proving entitlement to and the amount of a 

compensatory damages award. The decision 

sets out what is encompassed in “non-pecuniary 

losses” and notes that with two exceptions, an 

agency is fully liable for the damage resulting 

from the prohibited discrimination even though 

the appellant had a pre-existing condition that 

made the consequences of the wrongful act more 

severe than they would have been absent the 

pre-existing condition. However, if events other 

than the discriminatory conduct have affected 

the appellant’s condition, the agency would not 

be liable for those damages. It is material to the 

issue of the nature and severity of an appellant’s 

emotional distress that she sought expert 

medical help for her condition. With respect to 

the amount of the award itself, the Board 

concluded that there is no legal yardstick by 

which to measure accurately what is reasonable 

compensation for injuries such as emotional 

distress, but, under precedent, this appellant was 

entitled to $35,000.00 for her non-pecuniary 

damages. 

Special Counsel v. DeMeo, 77 M.S.P.R. 158 

(1998) 

The Board concluded that it is not 

authorized to impose a debarment from Federal 

employment for violations of the Hatch Act, 

based in part on the absence of legislative 

history that debarment was intended. A statute 

that imposes penalties must do so in clear terms 

to avoid unfairness and arbitrary enforcement, 

and penal statutes should be strictly construed 

against the Government or parties seeking to 

enforce statutory penalties and in favor of the 

persons against whom the penalties are sought. 

Martin v. Department of the Air Force & OPM, 

79 M.S.P.R. 380 (1998) 

Reversing its earlier decision in this 

appeal, the Board here rejected the National 

Labor Relations Board rule that allows back pay 

recovery where a disability that makes an 

appellant not ready, willing, and able to work is 

closely related to the interim employment or 

arises from the unlawful discharge, and is not a 

usual incident of the hazards of living generally. 

Here, the appellant had been injured in the 

course of the employment he took during the 

period the unwarranted personnel action was in 

effect. This final decision concluded that an 

award of back pay was not allowed under 5 

C.F.R. § 550.804(c) because the appellant was 

not ready, willing, and able to work during the 

back pay period, regardless of any causal 

connection between his inability to work and the 

unwarranted personnel action. 

Timberlake v. U.S. Postal Service, 79 M.S.P.R. 

520 (1998) 

A Postal Service preference eligible 

employee’s back pay entitlement is determined 

by the Back Pay Act and its implementing 

regulations, not the USPS’s Employee and 

Labor Relations Manual. Thus, the agency may 

require information from the appellant that will 

allow it to compute a back-pay award under the 

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U.S. MERIT SYSTEMS PROTECTION BOARD

Act but may not require information from him 

that is outside the scope of the Act. Where, as 

here, the agency went beyond the requirements 

of the Act to enforce a provision of the 

Employee and Labor Relations Manual, it was 

not in compliance with the Board’s back pay 

order. 

Caronia v. Department of Justice, 78 M.S.P.R. 

201 (1998) 

The Board may not order damages, 

reinstatement, and back pay when it finds that 

although an agency action was taken because of 

both a permissible reason, such as the 

appellant’s serious misconduct, and an 

impermissible one, such as disability 

discrimination, if it finds that the agency would 

have taken the same action based only on the 

proper reason. If it finds that the agency did not 

prove that it would have done so, those remedies 

may be awarded only if all of the circumstances 

of the case make them appropriate. 

DISCRIMINATION

Jackson v. U.S. Postal Service, 79 M.S.P.R. 144 

(1998) 

The Board reconsidered its decision 

which found that the appellant had been the 

victim of disability discrimination when the 

agency failed to accommodate her by 

reassigning her from her PS-3 level position. It 

held that it erred in basing its finding on the 

appellant’s mere articulation of a position to 

which she could be reassigned and the agency’s 

failure to rebut it. In subsequent compliance 

proceedings, the agency showed that no 

positions at her grade level existed. The Board 

held here that when a case is past that stage of 

the proceedings where the parties have presented 

their evidence on a disability discrimination 

issue, the rebuttable presumption created by the 

establishment of a prima facie case drops from 

the case and the issue is whether the appellant 

met her ultimate burden of proving 

discrimination. This rule is consistent with the 

Supreme Court’s decision in U.S. Postal Service 

Board of Governors v. Aikens, 460 U.S. 711 

(1983), a Title VII action in which the Court 

held that when a case has been fully tried, the 

factfinder should not analyze portions of the 

evidence in a burden-shifting approach, but 

instead should make the ultimate finding of 

whether discrimination occurred. Thus, an 

agency must, under 29 C.F.R. § 1614.203(g), 

identify vacant funded positions in the same 

commuting area, at or below the employee’s 

current grade or level, to which a disabled 

employee can be reassigned, but if it fails to 

meet its reassignment obligation before it 

removes the employee, that failure does not 

relieve the appellant of her burden of proving 

that such positions existed and were available. 

Absent such proof, there was no discrimination. 

Currier v. U.S. Postal Service, 79 M.S.P.R. 177 

(1998) 

 The Board overruled Crawford v. U.S. 

Postal Service, 70 M.S.P.R. 416, insofar as it 

allows a judge, prior to hearing, to strike 

discrimination claims found to be frivolous. The 

Board held that where an appeal falls within the 

scope of 5 U.S.C. § 7701(a)(1), and an appellant 

alleges discrimination in connection with the 

appealed action, he has a right to a hearing and 

to a decision on the merits of his EEO claim. 

Allowing an administrative judge to strike a 

discrimination claim without taking evidence is 

not consistent with EEOC law, nor is it 

consistent with the longstanding prohibition 

against summary judgment in Board appeals. 

The decision also reaffirmed the Board’s prior 

ruling in this case (72 M.S.P.R. 191) that despite 

the agency’s rescission of the underlying action, 

the appeal is not moot because the appellant may 

be entitled to compensatory damages if he 

prevails on his discrimination claim. 

SETTLEMENT

Jordan v. OPM, 77 M.S.P.R. 610 (1998) 

Board procedures empower its judges to 

facilitate and accept settlement agreements that 

promote both public and explicit Congressional 

policy. Where a settlement is entered into the 

Board’s record, it is equivalent to a final Board 

order in all respects, and OPM, in administering 

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U.S. MERIT SYSTEMS PROTECTION BOARD

a retirement matter before it, must effect its 

terms to the same extent it would a Board order 

on the merits. Thus, where the settlement of a 

removal appeal substitutes a new date for the 

appellant’s separation, OPM must give it effect 

as the date from which the time limit for filing 

for disability retirement begins to run. The 

Board also noted that a settlement may not 

dispose of a third party’s claim, or impose duties 

or obligations on a third party, without that 

party’s agreement. 

Wisdom v. Department of Defense, 78 M.S.P.R. 

652 (1998) 

The decision in this appeal clarifies any 

doubts created by the implication in Stipp v. 

Department of the Army, 64 M.S.P.R. 124, that 

an appellant’s status as a former employee 

precludes Board authority to enforce against him 

the terms of a settlement to which he had agreed. 

It notes that such a conclusion would lead to 

absurd results and would not effectuate the 

parties’ intent at the time the agreement was 

signed. Interpretations of settlement agreements 

that create absurd results are disfavored. 

King-Roberts v. U.S. Postal Service, 79 

M.S.P.R. 464 (1998) 

An appellant is entitled to rescission of 

the settlement agreement and reinstatement of 

her appeal if the agency has materially breached 

the agreement, but first she must return all 

money she received as the result of the 

agreement. Because the appellant may have 

been unaware of her repayment obligation when 

she requested rescission, the Board’s remand 

instructed the judge to provide her an 

opportunity to choose either to rescind the 

agreement or to accept its enforcement instead. 

ATTORNEY’S FEES

Swentek v. OPM, 76 M.S.P.R. 605 (1997) 

The Board has the authority to add to 

the categories deemed to constitute “the interest 

of justice” for awards of attorney’s fees. Here, 

the Board expanded the “clearly without merit” 

category to support an award of fees in those 

cases “where OPM is aware of some evidence of 

mental incompetence and ... failed to pursue the 

matter by undertaking prehearing discovery or 

otherwise making inquiry and did not actively 

contest the claim of mental incompetence at the 

Board hearing.” The Board held that in this case 

an award of fees was warranted under this new 

category. 

Shimotsukasa v. U.S. Postal Service, 78 

M.S.P.R. 679 (1998) 

Where an attorney-client relationship 

exists, fees charged for a legal investigator may 

be recovered when the investigator performs 

tasks that an attorney or a paralegal normally 

performs and where the investigator’s services 

would normally be separately billed to the client. 

BOARD PROCEDURES

Hasler v. Department of the Air Force, 79 

M.S.P.R. 415 (1998) 

This decision overruled Brumley v. 

Department of Transportation, 46 M.S.P.R. 666, 

and held that the Board’s statutory authority 

permits it to authorize as a method of discovery 

the use of a physical or mental examination 

under Rule 35 of the Federal Rules of Civil 

Procedure. The Board noted that ordering an 

examination under Rule 35 requires that the 

mental condition of the party to be examined be 

“in controversy” and that “good cause” for the 

examination be shown. Those requirements 

were explained and, the Board held, were met by 

the appellant’s request for consequential 

damages that allegedly resulted from the 

whistleblower reprisal. The Board declined to 

decide whether less intrusive methods must first 

be followed. 

ACCOMPLISHMENTS IN 

ADJUDICATION

As a procedural innovation in fiscal year 

1998, the Board approved a 1-year pilot project 

authorizing judges in the regional and field 

offices to issue bench decisions. Such decisions 

are oral decisions delivered at the conclusion of 

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U.S. MERIT SYSTEMS PROTECTION BOARD

the hearing in a case. A bench decision is then 

documented in a written decision that is 

provided to the parties shortly after the hearing. 

Although the pilot project will not conclude 

until March 1999, it appears from the 44 bench 

decisions issued during the fiscal year that the 

new initiative can serve parties well through 

faster decisions and by freeing the judges’ time 

normally spent in writing decisions. 

At headquarters, the Board had 

implemented a PFR Form pilot project during 

the previous fiscal year. The form is designed to 

help a party provide pertinent information in 

support of the party’s PFR and to assist the 

Board in adjudicating the PFR. The PFR Form 

is now used by approximately one-half of the 

unrepresented appellants who file PFR’s. As 

part of its evaluation of the pilot project during 

FY 1998, the Board conducted three focus group 

sessions with agency, employee, and union 

representatives, including representatives who 

were not attorneys. Those sessions developed a 

consensus that the PFR Form was very useful 

for unrepresented appellants and also produced a 

number of suggestions for improving the form. 

The Board is revising the form, consistent with 

those suggestions. 

The Board’s PFR Settlement Program, 

launched in 1993, achieved a 29 percent rate of 

success in appeals where settlement was 

attempted at the headquarters level--up from 23 

percent during the previous fiscal year. The 

Board’s customers and observers expressed 

surprise on hearing of this success rate, 

considering that settlement had been attempted 

at the regional or field office level in nearly all 

of these cases, and that an administrative judge 

had issued an initial decision in favor of one 

party. Equally important, the settlement efforts 

furthered the interests of customer service and 

alternative dispute resolution. Pro se appellants 

and parties continued to express their 

gratification with the settlement process as a 

vehicle to promote better understanding of both 

the adjudicatory process and the law as applied 

to their cases. 

During fiscal year 1998, the Board 

initiated planning for a formal training program 

to help agencies and employees achieve early 

resolution of potential cases. The program, to be 

conducted in partnership with the Public 

Administration Forum and a major university, is 

intended to develop a cadre of knowledgeable 

and skilled certified appeals resolution advisors, 

who will be able to help intercept and resolve 

cases prior to their being filed with MSPB. The 

Board expects that successful efforts by these 

advisors can reduce adjudicatory expenses 

significantly and resolve the issues within the 

workplace. This effort, which is expected to get 

underway late in fiscal year 1999, is consistent 

with and supportive of the goals and objectives 

of the Interagency Working Group on 

Alternative Dispute Resolution established by 

the President. 

Also during FY 1998, the Board 

finalized three interim regulations that had been 

published during 1997. (The Board’s 

procedures for both appellate and original 

jurisdiction cases are set forth in the Code of 

Federal Regulations at 5 CFR Parts 1201, 1203, 

and 1209.) 

• On June 30, 1998, the Board published a 

final rule clarifying the authority of MSPB 

judges to exclude a party or representative 

from all or any portion of a Board 

proceeding for contumacious misconduct or 

conduct that is prejudicial to the 

administration of justice (63 Fed. Reg.

35499). 

• On August 3, 1998, the Board published a 

final rule prescribing procedures for the 

Board’s consideration of requests for 

attorney fees, consequential damages, and 

compensatory damages (Subpart H of 5 CFR 

Part 1201) (63 Fed. Reg. 41177). 

• On August 11, 1998, the Board published 

final regulations for the processing of 

original jurisdiction cases (Subpart D of 5 

CFR Part 1201) (63 Fed. Reg. 42685). In 

these regulations, the Board delegated to the 

Chief Administrative Law Judge the 

authority to issue initial decisions in most 

original jurisdiction cases. 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

ACCESS TO MSPB ADJUDICATORY 

PROCEDURES AND DECISIONS 

Additional information on the Board’s 

procedures is available in its publications, An 

Introduction to the MSPB, Questions & Answers 

About Appeals, and Questions & Answers About 

Whistleblower Appeals, which were updated in 

September 1997. 

Final Board decisions are published by 

commercial publishers, including West 

Publishing Company (United States Merit 

Systems Protection Board Reporter), Labor 

Relations Press (Federal Merit Systems 

Reporter), and Information Handling Services 

(PERSONNET). All citations to Board decisions 

in this report are to the West’s publication.

Final Board decisions, weekly summaries of significant decisions, the Board’s 

information publications, and the MSPB Appeal Form are available on the Board’s 

World Wide Web site at www.mspb.gov and in the MSPB Library of the Government 

Printing Office’s Federal Bulletin Board. The bulletin board can be accessed by 

computer modem at 202-512-1387. Assistance is available from GPO by calling 202-

512-1530. Certain significant Board decisions are also available on the OPM 

Mainstreet BBS, 202-606-4800.

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U.S. MERIT SYSTEMS PROTECTION BOARD

LITIGATION

JUDICIAL REVIEW AND 

LITIGATION 

Final Board decisions in both appellate 

and original jurisdiction cases are subject to 

judicial review by the United States Court of 

Appeals for the Federal Circuit, with two 

exceptions. The exceptions are decisions in 

mixed cases involving allegations of 

discrimination and decisions in Hatch Act cases 

involving State or local government employees, 

both of which may be appealed to an appropriate 

U.S. district court. 

The Director of OPM may petition the 

Board for reconsideration of a final decision, 

and may also seek judicial review of a final 

Board decision that the Director determines will 

have a substantial impact on a civil service law, 

rule, regulation, or policy. 

During fiscal year 1998, the U.S. Court 

of Appeals for the Federal Circuit issued 

decisions on review of 450 final Board 

decisions, and left the Board decision unchanged 

in 92 percent of those. The Board actively 

litigated 101 cases in the Federal Circuit during 

the fiscal year. 

The Whistleblower Protection Act of 

1989 granted the Board litigating authority to 

defend its appellate decisions except where the 

merits of the underlying personnel action or a 

request for attorney’s fees is at issue. In 

addition, the Board is a respondent in all cases in 

which the Director of OPM seeks judicial review 

of a Board decision. The Board also litigates 

appeals from Board decisions in cases brought 

by the Special Counsel. 

Other active litigation includes 

discrimination cases filed in various Federal 

district courts when the Board is a defendant; 

cases in which the Board intervenes; cases 

where Board employees are sued in their 

personal capacities for actions taken by them 

within the scope of their employment; 

administrative litigation arising out of appeals to 

the MSPB filed by the Board’s own employees; 

and cases brought by the Board to enforce 

subpoenas issued by the Office of Special 

Counsel and the Board’s administrative judges. 

The Office of the General Counsel 

monitors cases involving appeals from decisions 

issued by the Board under its appellate 

jurisdiction. The employing agency is the 

named respondent in these cases and is defended 

by the Department of Justice. Board activities in 

connection with monitored litigation include 

responding to inquiries from the parties or the 

court, informing the Board of significant cases 

scheduled for argument or decision by the court, 

and preparing summaries of published decisions. 

During FY 1998, attorneys in the Office of the 

General Counsel monitored almost 600 cases, 

including both new filings with the court and 

cases carried over from the previous year. 

SUPREME COURT

Although it rarely does so, the Supreme 

Court may review a Federal Circuit decision in 

an MSPB case if a petition for certiorari is filed 

and the Court, in its discretion, decides to hear 

the case. In FY 1998, the Supreme Court 

reviewed one Federal Circuit case, Lachance v. 

Erickson, originating from the Board. 

Lachance v. Erickson, 118 S. Ct. 753 (1998) 

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U.S. MERIT SYSTEMS PROTECTION BOARD

In a case that overturned Federal Circuit 

precedent, Grubka v. Department of the 

Treasury, 858 F.2d 1570 (Fed. Cir. 1988), and 

Board caselaw conforming to that precedent, the 

Supreme Court held that neither the due process 

clause of the Fifth Amendment nor the CSRA 

prohibits a Government agency from 

disciplining an employee for making false 

statements in response to an inquiry about the 

employee’s alleged work-related misconduct. In 

Erickson, the Federal Circuit had reaffirmed its 

precedent in Grubka, stating that discipline 

cannot be imposed for such false statements. 

In reversing the Federal Circuit, the 

Supreme Court relied on its previous rulings that 

a criminal defendant’s right to testify does not 

include the right to commit perjury. The Court 

found that it was immaterial to the due process 

inquiry whether the employees charged with 

falsification had made the false statements under 

oath, as would be the case in a criminal perjury 

charge. The Court also rejected the argument 

that if employees were not allowed to make false 

statements, they might be coerced into admitting 

the misconduct, whether they believed they were 

guilty or not, in order to avoid the more severe 

penalty of removal that could result from a 

falsification charge. The Court noted that in a 

previous case it had found a similar argument 

“entirely frivolous.” If answering an agency’s 

investigatory questions would expose an 

employee to criminal prosecution, the employee 

could exercise his or her Fifth Amendment right 

to remain silent, the Court stated. 

 

FEDERAL CIRCUIT 

The following are summaries of 

significant decisions by the Federal Circuit on 

review of Board decisions during the fiscal year: 

Yates v. Merit Systems Protection Board, 145 

F.3d 1480 (Fed. Cir. 1998) 

The court held that an appellant need 

not expressly invoke the Uniformed Services 

Employment and Reemployment Rights Act 

and expressly assert a claim of 

discrimination based on service in a 

uniformed service in order to satisfy the 

Board’s jurisdictional requirements under 

the statute. The court found that the 

appellant’s factual assertions indicated that 

she may have been deprived of benefits of 

employment--two weeks of training and her 

30-day evaluation--because of her reserve 

duty. Under USERRA, a person’s 

obligation for service or membership in a 

uniformed service may not be “a motivating 

factor” in the denial of any benefit of 

employment. In view of the liberal 

standard applicable to USERRA claims, the 

court held that an appellant may invoke the 

Board’s jurisdiction under USERRA simply 

by articulating sufficient facts. 

Lachance v. Merit Systems Protection Board, 

147 F.3d 1367 (Fed. Cir. 1998) 

The court clarified the general rule 

that an agency is required to prove all 

elements of a charge when it proposes to 

discipline an employee, but does not need 

to prove all the facts that it alleges in 

support of the charge. The court noted that 

a caveat applies in cases where an agency 

presents a broad and general charge, such as 

“unacceptable and inappropriate behavior.” 

In such cases, the court held, the Board 

must examine the underlying factual 

allegations to determine what conduct the 

agency is relying on as the basis for its 

proposed discipline. 

Here, the specification set forth two 

alternative characterizations of the charge, 

one that required intent and one that did 

not. The court found that the Board was 

correct in looking at the factual allegations 

underlying the general charges. However, 

after determining that the agency had not 

proven intent to interfere with an agency 

investigation, the Board should have 

considered the alternative charge and 

determined whether, regardless of his 

intent, the employee’s actions were 

improper because he should have known 

that a subordinate would perceive his 

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U.S. MERIT SYSTEMS PROTECTION BOARD

conduct as intimidating. Therefore, the 

court reversed the Board because it found 

that the specification did not require the 

agency to prove the employee’s intent. 

Markland v. Office of Personnel Management, 

140 F.3d 1031 (Fed. Cir. 1998) 

O’Brien v. Office of Personnel Management, 

144 F.3d 1458 (Fed. Cir. 1998) 

In these cases, the court clarified the 

legal test concerning the creation of competitive 

areas when an agency conducts a RIF. 

Generally, in the event of a RIF, employees 

compete for retention with other employees 

in their “competitive area” whose job 

classifications place them in the same 

competitive level. In both of these cases, the 

court rejected arguments that the competitive 

area should have encompassed a larger number 

of employees and affirmed the Board’s 

decisions. In Markland, the court agreed with 

the Board majority that the appellant’s office 

was properly established as a separate 

competitive area and affirmed the appellant’s 

RIF separation. The court stated that the head of 

an office need not have appointing authority in 

order for the office to be designated as a separate 

competitive area in a RIF. An agency may 

establish a departmental office as a separate 

competitive area if it is a major subdivision of 

the agency and is separately organized and 

clearly distinguished from other offices in 

operation, work function, staff, and personnel 

management. The personnel management prong 

of this test is satisfied if the office head has the 

authority to take or direct personnel actions (i.e., 

the authority to assign duties, establish and 

abolish positions). 

In O’Brien, the court stated that neither 

the statute nor the implementing regulations that 

govern the order of retention for employees in a 

RIF guarantee an employee the opportunity to 

compete with other employees for retention. In 

construing 5 U.S.C. § 3502, the court found that 

the statute governing order of retention merely 

requires that OPM regulations “give due effect” 

to the factors of tenure, length of service, 

military preference, and performance ratings. 

The creation of a very small competitive area, 

although it limits an employee’s chances to 

compete successfully for retention, does not 

violate the statutory mandate of section 3502. 

Harris v. Department of Veterans Affairs, 142 

F.3d 1463 (Fed. Cir. 1998) 

Under certain conditions set forth at 5 C.F.R. 

§ 844.202(a), an agency has an obligation to 

assist an employee in filing a disability 

retirement application with OPM if the 

employee has at least 18 months of Federal 

civilian service and is incapable of making a 

rational decision whether to file and process the 

application. In this case, the court ruled that the 

agency’s duty is not discharged if the employee 

has filed an application on his own. The court 

found that the appellant was incapable of 

making a rational decision whether to file and 

process the disability application. The court 

vacated the Board’s decision and remanded the 

case for the Board to determine whether the 

agency had complied with 5 C.F.R. § 844.202(a) 

and whether the agency had breached its 

obligations under a settlement agreement it had 

entered into with the appellant. 

New v. Department of Veterans Affairs, 142 F.3d 

1259 (Fed. Cir. 1998) 

The court found that the Board had 

jurisdiction over an appeal by an employee who 

had requested priority restoration to her former 

position following her recovery from a 

compensable injury. When an agency removes 

an employee who has a compensable injury 

because the employee refuses to return to work, 

and no suitability determination has been made 

by OWCP, a sufficient nexus exists between the 

compensable injury and the removal to entitle 

the employee to priority consideration for 

restoration, the court held. As a general rule, an 

employee is required to comply with instructions 

from his or her agency acting within its

authority, but compliance with an agency returnto-work order is not required when OWCP has 

made no suitability determination and a return to 

work would place the employee in a clearly 

dangerous circumstance. 

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U.S. MERIT SYSTEMS PROTECTION BOARD

Bolton v. Merit Systems Protection Board, 154 

F.3d 1313 (1998) 

The issue in this case was whether a 

Postal Service employee was a supervisor or 

management employee so that he was within an 

exception to the general rule that the Board does 

not have jurisdiction over appeals by nonpreference-eligible Postal Service employees. 

The court found that a Postal employee is a

“supervisor” if he or she has the authority to 

discharge or discipline another employee or 

effectively recommend that another employee be 

discharged or disciplined, or responsibly direct 

the actions of others. If these two factors are not 

present, the Board must consider whether the 

employee performs other supervisory functions 

listed in the National Labor Relations Act. The 

court found that a “management employee” is 

one who makes policy recommendations related 

to his or her experience and qualifications. After 

considering these factors and finding that the 

appellant’s other “supervisory” functions were 

performed “without significant discretion or 

independent judgment,” the court affirmed the 

Board’s decision that it lacked jurisdiction over 

the appeal. 

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

www.fedcir.gov, which provides quick access to two other Web sites that make 

the court’s decisions available. 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

STUDIES

THE STATUTORY STUDIES 

FUNCTION

The CSRA assigned the Board, in 

addition to its adjudicatory functions, 

responsibility for reviewing the significant actions 

of OPM and for conducting studies of the civil 

service and other merit systems in the Executive 

Branch. The studies function complements the 

Board’s adjudicatory activities by reviewing 

Federal human resources management policies 

and practices on a systemic basis. The Board is 

uniquely situated to provide neutral, independent, 

and non-partisan reviews and assessments as part 

of the ongoing effort to develop and maintain an 

effective and efficient civil service. 

The Board typically solicits potential 

study topics from a wide variety of sources in 

developing its OPM oversight and studies agenda. 

The Board’s studies are usually governmentwide 

in scope, and are conducted through a variety of 

evaluation methods, including mail and telephone 

surveys, on-site systems reviews, written 

interrogatories to agencies, formal discussions 

with subject-matter experts, computer-based data 

analysis, and reviews of secondary source 

materials. 

The Board’s reports on the results of its 

studies are addressed to the President and the 

Congress, as required by law, and also are made 

available to a large secondary audience of Federal 

agency officials, employee and public interest 

groups, labor unions, academicians, and other 

individuals and organizations with an interest in 

public personnel administration. 

SUMMARIES OF REPORTS ISSUED IN 

FY 1998

The Changing Federal Workplace: 

Employee Perspectives (March 1998) - This report 

presents results from the Board’s fifth triennial 

Merit Principles Survey, conducted in 1996. 

These surveys are sent to a representative, 

randomly-selected sample of Federal employees 

to elicit their views on a number of workplace 

issues, such as working conditions, job 

satisfaction, and the quality of coworkers and 

supervisors. The 1996 survey also included 

questions that permitted an evaluation of the 

effect of various forces for change on 

organizational operations and employee 

productivity. 

The survey found that Federal employees 

believe that budget cuts, agency downsizing, and 

reinvention efforts have had both positive and 

negative effects on Government operations. 

Almost half of the respondents said that the 

productivity of their work units had improved 

during the preceding two years and that they had 

more flexibility in the way they perform their 

jobs. Despite downsizing, 44 percent thought 

their work units had enough people to do the job 

in 1996--virtually the same percentage that gave 

this answer to the same question on the 1993 

survey. 

On the other hand, most Federal workers 

also said that budget cuts have had a negative 

effect on mission accomplishment in their 

organizations. Almost no respondents said that 

downsizing had helped their organizations, and 

many believed that it had eroded institutional 

memory. 

Employees also had mixed assessments 

about the impact of Federal reinvention efforts. 

Only about a quarter said that labor-management 

partnerships had helped their organizations to 

better accomplish their missions. Similarly, while 

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U.S. MERIT SYSTEMS PROTECTION BOARD

about half the respondents gave no opinion, less 

than 30 percent of those who expressed an opinion 

thought that reinvention efforts had been 

successful in bringing positive changes to the 

Government. 

Employee views in other areas were much 

the same as in 1993. Overall job satisfaction was 

relatively positive, with 70 percent of respondents 

saying they were satisfied with their jobs. 

Dealing with problem employees continued to be 

a significant concern for many Federal 

supervisors. Federal employees were also just as 

likely as in 1993 to think they were victims of 

discrimination based on race. Over 40 percent of 

the respondents said that they had only minimal or 

no protection against prohibited personnel 

practices, with unfair preferences in hiring and 

promotion actions being the prohibited personnel 

practice of greatest concern. 

The report concluded with several 

recommendations. Agencies were encouraged to 

ensure that their efforts to reduce expenditures 

also include a sincere effort to involve employees 

in attempts to improve their operations. Where an 

agency’s culture sanctions not dealing effectively 

with problem employees, changes should be made 

to ensure that employees are held accountable for 

their performance. Systems should be in place to 

ensure that supervisors are held accountable for 

their decisions, given the greater decentralization 

and delegation of personnel management 

authorities. Finally, both OPM and individual 

agencies should make efforts to ensure that they 

are able to find and recruit high-quality applicants 

for Federal positions. 

Federal Supervisors and Strategic Human 

Resources Management (June 1998) - This report 

was based on data collected by MSPB in over 17 

years of research on Federal supervisors. In it, the 

Board found that supervisors do not appear to be 

achieving the right balance between short-term 

and long-term human resources management 

goals. While most supervisors do a commendable 

job of performing the technical work of their 

units, they have a much harder time with human 

resources management tasks. Supervisors’ 

personnel decisions tend to respond to immediate 

needs rather than to the long-term health of the 

workforce and the organization’s ability to meet 

its strategic goals. 

Its years of research in the area of Federal 

supervisors led the Board to conclude that two 

factors--organizational culture and the supervisory 

selection process--have been instrumental in 

creating a corps of Federal supervisors who tend 

to give priority to short-term personnel needs over 

long-term strategies. Agency cultures may 

actually be rewarding supervisors for taking the 

short-term approach. Furthermore, Federal budget 

cycles may be forcing supervisors to make hiring 

and training decisions within the confines of the 

current fiscal year’s appropriation, even if 

delaying or spreading out such actions would lead 

to better long-term results. A focus on technical 

qualifications when selecting supervisors may be 

leading to hiring supervisors who do not fully 

appreciate the importance of human resources 

management decisions in making the technical 

accomplishments of the work unit possible. 

The report recommends that agencies 

develop cultures that encourage supervisors to 

make personnel decisions that give weight to 

strategic goals for the organization as well as the 

short-term goals of the work unit. It also 

recommends that agencies change their approach 

to supervisory selection, training, and 

involvement in strategic planning. 

Civil Service Evaluation: The Evolving 

Role of the U.S. Office of Personnel Management

(July 1998) - This report addresses the role that 

OPM plays in conducting Governmentwide 

oversight of the merit-based civil service system. 

It focuses on changes in OPM’s evaluation system 

since the Board last reviewed it in 1992. 

A 1995 OPM reorganization led to the 

establishment of the Office of Merit Systems 

Oversight and Effectiveness, bringing together 

several existing OPM units. The new office was 

given responsibilities to promote a merit-based 

civil service, identify opportunities for improving 

Federal personnel policies and programs, and help 

agencies meet their mission goals through 

effective recruitment, development, and use of 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

employees. The Board found that while OPM’s 

success in achieving these goals had been uneven, 

its oversight program had a generally improved 

image among Federal agencies. 

The Board noted that a major challenge 

facing OPM is how to shift the focus of personnel 

management accountability from the human 

resources office to line managers. Too often, “let 

the manager manage” means that human resources 

offices take the heat when personnel decisions 

made by line managers are challenged. The 

accountability conundrum is one OPM and 

agencies must work together to solve. 

The report states that other oversight 

issues OPM must address include: (1) measuring 

personnel management success by results, not just 

process; (2) developing clear standards for 

measuring personnel management activities and 

results; and (3) encouraging agencies to 

implement self-assessment programs to ensure 

compliance with personnel laws, regulations, and 

policies. Among the report’s recommendations 

were that OPM take the lead in developing better 

means of assessing personnel management results 

and in developing evaluation standards, that OPM 

share information on best and worst personnel 

management practices with agencies, and that 

OPM oversight staff become more involved with 

agencies’ self-assessment efforts. 

OTHER ACTIVITIES

In addition to reports of its merit systems 

studies and OPM oversight reviews, the Board 

produced four issues of its periodic newsletter, 

“Issues of Merit,” during fiscal year 1998. This 

publication, launched in Spring 1996, 

disseminates findings, analyses, and 

recommendations from Board studies in a concise, 

readable format to a wide audience. Topics 

covered in the last fiscal year include: 

• Supervisors’ and managers’ ratings of the 

competencies required for the performance of 

human resources management activities; 

• The evolving due process rights of Federal 

employees; 

• Dealing with poor performers; 

• Supervisors’ ratings of their agency personnel 

offices; 

• What supervisors look for in applicants for 

Federal jobs; 

• Agencies’ use of the Outstanding Scholar 

hiring authority; 

• Evaluating the programs for displaced Federal 

employees--the Career Transition Program 

(CTAP) and the Interagency Career Transition 

Program (ICTAP); and 

• Previews of the findings from forthcoming 

reports. 

In July 1998, the Board’s studies staff 

completed a two-year effort with the National 

Partnership for Reinventing Government (NPR) to 

develop the first-ever NPR survey of Federal 

employees to determine if reinvention is working 

from the perspective of those doing the job. 

Questions cover such key areas as customer 

service, leadership, teamwork, employee 

development, streamlining, and job satisfaction. 

The 33-question survey includes 7 questions that 

duplicate questions asked on the MSPB Merit 

Principles Survey, permitting NPR to compare the 

survey results to MSPB survey data from past 

years to judge whether progress has been made. 

Other agency partners in the development of the 

NPR survey were OPM and the Federal Aviation 

Administration.

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

ADMINISTRATION

STEPS TOWARD AN ELECTRONIC 

ENVIRONMENT

During FY 1998, the Board began a 

major initiative to design and develop an 

integrated document management and workflow 

system that will include support and 

maintenance of imaged and electronic case 

records. The agency’s functional requirements 

were analyzed, and the system proposal has been 

completed. This proposal recommends a phased 

approach with development and implementation 

beginning in FY 1999, using off-the shelf 

software, and small pilot projects leading to full 

implementation in FY 2000. The first phase of 

the system proposal includes modules for case 

management, document management, creation 

of documents using a sophisticated automated 

approach, and an advanced legal research tool. 

The next phase would allow the Board to accept 

on-line submission of appeals, briefs, and other 

case-related materials and provide access to 

electronic case records by all Board employees. 

Also during FY 1998, the Board 

selected its first case for the electronic filing 

pilot project with the Federal Circuit, Lachance 

v. White and MSPB. In this case, the Director 

of OPM is challenging a Board interpretation of 

whistleblower law that the Director believes will 

have a significant adverse impact on the civil 

service. The case was selected because Federal 

agencies are on both sides of the case. The 

Department of Justice is representing the 

petitioner--the Director of OPM, and MSPB is a 

respondent. The non-Government respondent is 

represented by counsel. This ensures that at 

least the petitioner and one respondent possess 

the technical resources to participate in the 

project and that the other respondent has the 

opportunity to participate or to object if he 

believes it would infringe upon his rights. The 

mechanism for electronic filing is to post 

documents to an Internet site. Participating 

attorneys are assigned passwords to access the 

site. After a document is posted, the court 

reviews and either accepts or rejects the 

document. Posted documents may be 

downloaded for viewing. In addition to briefs, 

motions, docketing statements, court orders, and 

decisions will be posted. 

As the platform for electronic case 

processing, the Board replaced its outdated 

electronic mail system (HPDesk) with Lotus 

Notes, the first client-server application 

implemented by the agency subsequent to the 

completion of the local and wide area networks 

in FY 1997. In addition to superior messaging 

capabilities, Lotus Notes offers an integrated 

calendar, seamless Internet mail, links to Web 

sites through e-mail messages, discussion 

groups, the ability to FAX through e-mail and 

attach Word and Excel documents, and 

outstanding filing cabinet capabilities. Lotus 

Notes will also be used as an intranet, allowing 

all employees easy access to documents, 

manuals, notices, and other document libraries. 

It also provides the ability to reserve conference 

rooms and video equipment, and supports 

workflow applications requiring the signing and 

routing of administrative documents. 

 The Board continued in FY 1998 to 

implement other technological improvements to 

increase the efficiency of its staff. The Board 

now has video conferencing equipment available 

in eight of its regional and field offices. During 

FY 1998, 61 hearings were handled by video 

conference. The video conferencing equipment 

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U.S. MERIT SYSTEMS PROTECTION BOARD

has also been used in the adjudicatory process 

for video testimony, prehearing conferences, and 

settlement discussions. All of these uses helped 

avoid costly and time-consuming travel by 

MSPB judges and the parties to cases and has 

had a significant positive effect on initial appeal 

case processing productivity. Because use of 

this equipment can save up to $2,500 on a single 

hearing, and with over 1,300 hearings held each 

year, there is a great potential for significant 

long-term savings. Administratively, the 

regional and field offices also were able to hold 

multi-office staff meetings, training sessions, 

and employment interviews with the video 

conferencing equipment. At headquarters, a 

second video conferencing unit was purchased 

in response to Board staff demand. 

The Board’s achievement in 

using video conferencing to 

reduce the cost of adjudication 

was recognized in September 

1998 when Vice President 

Gore’s Hammer Award was 

presented to the MSPB Video 

Conferencing Implementation 

Team, composed of staff 

members from both the regional 

offices and the Financial and 

Administrative Management 

Division. 

In FY 1998, the agency undertook a 

study of its telecommunication system to 

determine how it might be improved. It also 

began implementing an increased capacity and 

speed in its telecommunication lines to increase 

efficiency. 

YEAR 2000 COMPLIANCE ON TRACK

The Board made substantial progress 

during the fiscal year towards the identification, 

correction, and testing of computer systems and 

hardware for Y2K compliance. The agency has 

replaced telephone equipment, voicemail, 

software, and security systems that were 

determined to be non-compliant. The Board 

expects to complete its remediation of all 

systems by March 1, 1999, and to complete 

validation of all systems by June 30, 1999. 

CASE PROCESSING AND STAFFING

To operate under continuing budgetary 

constraints, the Board continues to streamline its 

workforce and focus its resources on case 

adjudication. The Board conducted a RIF on 

October 1, 1997, that abolished 15 

administrative and overhead positions at 

headquarters. With the funds saved by this RIF, 

the Board was able to hire a number of 

temporary administrative judges in the regional 

offices and temporary attorneys in the Office of 

Appeals Counsel at headquarters. The 

additional administrative judges allowed the 

regional offices to reduce the pending backlog 

by nearly 700 appeals during the year. The 

additional attorneys at headquarters, who were 

hired during the latter part of the fiscal year, 

helped reduce the pending appeals at 

headquarters by nearly 400 cases during the last 

four months of the fiscal year. 

HUMAN RESOURCES CROSS 

SERVICING

As part of the Board’s ongoing effort to 

reduce administrative expenses and achieve 

greater efficiency, it contracted with a consulting 

firm in fiscal year 1998 to review the agency’s 

human resources function. The contractor 

recommended that the Board consider receiving 

human resources services on a cross servicing 

basis. An MSPB team then established goals 

and objectives for cross servicing and assessed 

the relative merits of three potential providers of 

human resources services. After this review, the 

Board decided to enter into an interagency 

agreement with the Department of Agriculture’s 

Animal and Plant Health Inspection Service 

(APHIS). The agreement was signed during the 

summer of 1998, and the Board carried out the 

transition of functions during the last few 

months of the fiscal year. The new cross 

servicing agreement has given the Board access 

to a large human resources staff while saving 

significant financial resources which it has been 

able to apply to its adjudicatory function. 

Because of the large range of expertise available 

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U.S. MERIT SYSTEMS PROTECTION BOARD

through APHIS, the Board expects to benefit 

from their human resources services for many 

years. 

PURCHASE CARD MANAGEMENT 

SYSTEM

During FY 1998, MSPB worked closely 

with the Department of Agriculture’s National 

Finance Center as the first cross servicing 

agency to implement their new Purchase Card 

Management System (PCMS). The system has 

increased efficiency in tracking, reconciling, 

controlling, and paying for purchases against 

Government credit cards and convenience 

checks. It has greatly reduced the time spent on 

processing credit card transactions and also 

provided more information on regular monthly 

financial reports. The system has several 

additional benefits, including alerts and 

statistical sampling, reduced cost through 

reduction in the use of purchase orders, an 

automated line to the Federal Procurement Data 

System, and an ad-hoc reporting capability. 

ELECTRONIC FUNDS TRANSFER

During the fiscal year, the Board worked 

to implement the Federal law requiring almost 

all payments to be made by electronic funds 

transfer. A number of contractors were assisted 

in signing up for the program, and several others 

were provided assistance in signing up for the 

credit card system. This has made transactions 

for MSPB more efficient. The agency processes 

the transactions faster and at lower cost, and 

vendors receive their payments more quickly, 

safely, and inexpensively. 

ANNUAL REPORT FOR FISCAL YEAR 1998

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U.S. MERIT SYSTEMS PROTECTION BOARD

FINANCIAL INFORMATION

The financing sources and current obligations incurred for fiscal year 1998 are listed below. All figures 

are in thousands of dollars. 

Financial Sources

Current Year Appropriations $25,290

Civil Service Retirement and Disability Trust Fund reimbursements 2,430

Other 22 

 Total financing sources 27,742

Obligations incurred - current

Personnel 17,671

Personnel benefits 3,094

Benefits for former personnel 97

Travel and transportation 410

Transportation of things 56

Rent-GSA 1,880

Communications and utilities 593

Printing and reproduction 109

Other services 3,064

Supplies and materials 182

Equipment 518 

 Total obligations incurred 27,674

Unobligated balance $68

ANNUAL REPORT FOR FISCAL YEAR 1998

33
U.S. MERIT SYSTEMS PROTECTION BOARD

FOR ADDITIONAL INFORMATION

MSPB’s World Wide Web site contains information 

about the Board and its functions, as well as copies 

of decisions, reports, and publications. Complete 

copies of decisions from July 1, 1994, are available 

for downloading, as are copies of the weekly Case 

Summaries and recent reports and studies. The 

address of the Board’s Web site is 

http://www.mspb.gov. 

The MSPB Library on the Federal Bulletin Board 

can be accessed by computer modem at 202-512-

1387 seven days a week. User assistance is 

available from GPO from 8 AM to 4 PM Eastern 

time, Monday through Friday, by calling 202-512-

1530. The Bulletin Board can also be accessed via 

the Board’s Web site. 

The Board’s toll-free telephone number is 

1-800-209-8960. 

Comments or questions regarding MSPB, the 

bulletin board, or the Web site may be sent to the 

Board’s e-mail address, mspb@mspb.gov. 

ANNUAL REPORT FOR FISCAL YEAR 1998

34
U.S. MERIT SYSTEMS PROTECTION BOARD

CUSTOMER SERVICE STANDARDS

The Merit Systems Protection Board has two 

core missions: (1) Adjudication of appeals 

brought to it under the provisions of law and 

regulation, and (2) Oversight of the Federal 

merit systems. These two missions are 

authorized in the Civil Service Reform Act of 

1978. 

We have established these standards to assure 

our customers that they receive the quality of 

service to which they are entitled and to assure 

the public as a whole that we are ably 

promoting and protecting the Federal merit 

systems.

MISSION I -- Adjudication of Appeals

1. We will make our regulations easy to 

understand and our procedures easy to follow. 

2. We will process appeals in a fair, objective 

manner, according respect and courtesy to all 

parties. 

3. We will promptly and courteously respond to 

customer inquiries. 

4. We will facilitate the settlement of appeals. 

5. We will issue readable decisions based on 

consistent interpretation and application of law 

and regulation. 

6. We will issue decisions in initial appeals 

within 120 days of receipt and within 110 days 

on petitions for review, except where full and 

fair adjudication of an appeal requires a longer 

period. 

7. We will make our decisions readily available 

to our customers. 

MISSION II -- Oversight of the Federal 

Merit Systems and the U.S. Office of 

Personnel Management

1. We will conduct research on topics and 

issues relevant to the effective operation of the 

Federal merit systems and the significant actions 

of the U.S. Office of Personnel Management; 

perform sound, objective analysis; and where 

warranted, develop practical recommendations 

for improvement. 

2. We will issue timely, readable reports on the 

findings and recommendations of our research 

and make these reports available to all interested 

individuals and parties. 

3. We will enhance the constructive impact of 

our studies and reports through outreach efforts.

We will conduct surveys of our customers from time to time to see how well we are 

meeting these standards. However, if at any time, you have comments or suggestions 

concerning our service, we invite you to provide feedback to the Board, through the Clerk 

of the Board, at 1120 Vermont Avenue, NW, Washington, DC 20419, telephone (202) 

653-7200, FAX number (202) 653-7130. Electronic mail may be sent over the Internet to 

mspb@mspb.gov. 

ANNUAL REPORT FOR FISCAL YEAR 1998

35