Foreword

Since it began operations in January 1979, the Merit Systems Protection Board has 

issued 21 annual reports on its activities. These reports satisfied the statutory 

requirement (5 U.S.C. § 1206) that the Board report annually to the President and 

Congress on its activities to carry out its functions under Title 5, United States Code. 

That statutory reporting requirement, however, terminated on May 15, 2000, under the 

“sunset” provisions of the Federal Reports Elimination and Sunset Act of 1995 (Public 

Law 104-66), as amended by the Consolidated Appropriations Act, FY 2000 (Public Law 

106-113). 

Aside from satisfying the previous statutory reporting requirement, the MSPB Annual 

Report has long served a public information purpose as well. The annual reports have 

been used to provide information to Federal employees, agencies, and others with an 

interest in the Board’s activities about the significant decisions issued during the previous 

fiscal year by the Board and its principal reviewing court, the U.S. Court of Appeals for 

the Federal Circuit, as well as certain case processing statistical data and summaries of 

reports issued by the Board under its statutory authority to conduct studies of the civil 

service and other merit systems in the Executive Branch. 

For all but two of the past 21 years, the MSPB Annual Report has been supplemented 

by an annual case processing statistical report (“Report on Cases Decided,” formerly 

called the “Appeals Study”). This report contained tables and charts on the numbers and 

types of appeals and other cases decided at both the headquarters and regional office 

levels, the disposition of cases, and other matters, along with a narrative similar to that in 

the Annual Report. 

The Board believes that continuing to make this information available to the public in 

a convenient format (both print and electronic) will serve its customer service goals. 

Therefore, beginning with this Annual Report for FY 2000, the Board is combining the 

most important information previously included in the Annual Report and “Report on 

Cases Decided” into a single, streamlined report. 

As a part of the streamlining of the combined report, certain information that has been 

included in the past is omitted where it is available in other MSPB publications or on the 

MSPB Web site (www.mspb.gov). Descriptions of the Board’s jurisdiction, the appeals 

process, and the methods of conducting studies, for example, are available in the 

publication, An Introduction to the MSPB. More detailed information regarding the 

appeals process can be found in the publication, Questions & Answers about Appeals. 

The MSPB Web site contains a wealth of information—including the Board’s 

regulations, complete texts of final Board decisions, complete reports of merit systems 

studies, a list of the regional and field offices and the geographical jurisdictions of each, 

contact information for both headquarters offices and the regional and field offices, and 

the latest agency press releases. 
The Board, of course, is aware that both the Administration and Congress are now 

focused primarily on the annual agency performance reports that are required to be 

submitted under the Government Performance and Results Act (GPRA). These 

performance reports, with their requirement to report results in relation to goals, have 

essentially replaced the annual reports on activities called for by the reporting 

requirements that were terminated by the Federal Reports Elimination and Sunset Act. 

The MSPB Performance Report for FY 2000, available on the MSPB Web site, 

includes data on case processing times at both the headquarters and regional office levels, 

information on the Board’s work in the area of alternative dispute resolution, data on 

settlement rates, data on the extent to which final Board decisions are upheld by the U.S. 

Court of Appeals for the Federal Circuit, information on the impact of the Board’s merit 

systems studies, and information about the agency’s progress toward completion of its 

information technology initiative. The MSPB Strategic Plan and the Performance Plan 

for FY 2001-2002, both of which were substantially revised beginning in FY 2000, are 

also available on the MSPB Web site. 

The “goals and results” structure of the performance reports required by GPRA does 

not provide for the inclusion of certain information that we know from experience our 

customers want—particularly the summaries of decisions and studies. This Annual 

Report, then, becomes a companion to the MSPB Performance Report and the Board’s 

other publications. It provides information that pertains to the fiscal year covered by the 

report that is not available elsewhere.

The Board welcomes comments on this new approach to the agency’s Annual Report. 

We invite you to let us know what you think of the new format, whether you find the 

information useful, and what you would like to see added or omitted. Comments may be 

submitted by e-mail to mspb@mspb.gov or by mail to the Clerk of the Board, 1615 M 

Street, NW, Washington, DC 20419. We look forward to hearing from you.
Table of Contents 

FISCAL YEAR 2000 IN REVIEW....................................................... 2 

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

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

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

SIGNIFICANT DECISIONS OF THE U.S. COURT 

 OF APPEALS FOR THE FEDERAL CIRCUIT .............................. 21 

FY 2000 CASE PROCESSING STATISTICAL DATA..................... 24 

MERIT SYSTEMS STUDIES............................................................ 37 

FY 2000 FINANCIAL SUMMARY.................................................... 41 

FOR ADDITIONAL INFORMATION ................................................ 42 
Fiscal Year 2000 in Review 

YEAR OF CHANGES 

Fiscal Year 2000 was a year of significant changes for the Merit Systems Protection 

Board. In addition to the end of the tenure of the Board’s Chairman—always a time of 

change, the year was marked by the departures of key personnel in the top ranks of the 

agency’s management and by the relocation of both the Board’s headquarters and its 

Washington Regional Office. 

Former Chairman Ben L. Erdreich completed his 7-year term in March 2000 and left 

for the private sector. Then-Vice Chair Beth S. Slavet became Acting Chairman, in 

accordance with the Board’s governing statute, and served in that capacity until President 

Clinton appointed her Chairman in late December 2000. Although President Clinton 

submitted a nomination in May 2000 to fill the vacancy on the Board, the Senate did not 

act on it before the 106th Congress adjourned in December. President Clinton then filled 

the vacancy by appointing Barbara J. Sapin to serve as a member and Vice Chairman of 

the Board. The 10-month period during which there was a vacancy on the Board was the 

longest such period since the Board began operations in 1979. 

During this long period with a 2-member Board, then-Acting Chairman Slavet and 

Member Susanne T. Marshall, along with their staffs, worked diligently to ensure that 

cases continued to be processed expeditiously. Where the two Board members could not 

agree on a decision on a petition for review (PFR) of an initial decision by a MSPB 

administrative judge, the cases usually were closed with an Order allowing the initial 

decision to become the final (but not precedential) decision of the Board. Very few cases 

were held for the arrival of a new Board member. 

When former Chairman Erdreich departed, so did the political appointees who served 

him, including the Chief of Staff and the Director, Office of Appeals Counsel. The 

Acting Chairman appointed her Chief Counsel as the new Chief of Staff—the first time 

an attorney has served in the agency’s top administrative position. 

Adding to the departures in the top ranks, both the General Counsel and Legislative 

Counsel retired in early June. And by the end of the fiscal year, both the Director, Office 

of Regional Operations (ORO), and the Chief Administrative Law Judge (CALJ) had 

announced that they would retire at the beginning of January 2001. In an unexpected—

and extremely sad—loss, the Director of the Western Regional Office in San Francisco 

died after suffering a heart attack. 

By January 2001, the OAC Director, Legislative Counsel, and Western Regional 

Office Director positions had all been filled with career appointees new to MSPB, while 

the General Counsel position was filled with a political appointee. The Deputy Director 
of ORO was serving as the acting head of that office. Rather than filling the vacant 

CALJ position, the Board contracted with the National Labor Relations Board (NLRB) to 

have designated NLRB administrative law judges adjudicate the kinds of MSPB cases 

formerly adjudicated by the Board’s CALJ. With other retirements likely in the next few 

years, both at the top-management level and in the rest of the agency’s workforce, 

succession planning and preserving institutional memory have become priorities. 

FY 2000 brought not only changes in personnel but also changes in surroundings for 

many MSPB employees. After almost 19 years at 1120 Vermont Avenue, NW, the 

Board moved its Washington headquarters a few blocks away to 1615 M Street, NW, in 

July 2000. Despite the inevitable disruptions that accompany a move of this magnitude, 

the agency continued to provide services to its customers almost without interruption. 

The new location provides greater safety and security, better configured work spaces, and 

a state-of-the art computer facility for the agency’s increasingly computerized operations. 

In September 2000, the Board relocated its Washington Regional Office (WRO) from 

Falls Church, Virginia, to Alexandria, Virginia. The new WRO location, across from the 

King Street Metro station, makes this office far more accessible to its customers and also 

makes commuting by public transportation a viable option for WRO employees. The 

Board plans to relocate its Denver Field Office late in FY 2001 or early in FY 2002. 

ADJUDICATION OF CASES 

In FY 2000, the Board continued to address the full range of both substantive and 

procedural issues that arise in the matters over which it has jurisdiction. It issued 

significant decisions interpreting newer laws such as the Uniformed Services 

Employment and Reemployment Rights Act (USERRA), as amended in 1998, and the 

Veterans Employment Opportunities Act (VEOA), as well as decisions interpreting the 

now 12-year old Whistleblower Protection Act (WPA). It also decided cases that added 

to the law in areas the Board has addressed throughout its 22-year history, such as 

adverse actions, performance-based actions, and retirement. 

The Board’s principal reviewing court, the U.S. Court of Appeals for the Federal 

Circuit, also issued several important precedential opinions during the fiscal year. 

(See the sections titled “Significant Decisions of the Board” and “Significant 

Decisions of the U.S. Court of Appeals for the Federal Circuit” for summaries of Board 

and Court decisions.) 

The Board made a number of amendments to its regulations governing the processing 

of cases, most of them aimed at assisting parties in pursuing their cases before the Board. 

Perhaps the most significant was the issuance of a new Part 1208 of 5 CFR, setting forth 

the requirements for processing USERRA and VEOA appeals. (Interim rule at 65 FR 

5410, February 4, 2000; final rule at 65 FR 49895, August 16, 2000; conforming 

amendment to 5 CFR Part 1201 at 65 FR 5409, February 4, 2000.) 

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The Board also finalized two proposed rules it had issued in 1999. To assist 

appellants in obtaining adequate legal representation, it amended its regulations on an 

award of attorney fees to permit reimbursement at the attorney’s customary billing rate in 

the community where the attorney normally practices (65 FR 24381, April 26, 2000). In 

order to assist appellants in understanding the consequences of an election between 

appealing to MSPB or filing a grievance, the Board amended its requirements for the 

notice an agency must give when it takes an appealable action against an employee who 

has both a right to appeal to MSPB and a right to grieve the matter under a negotiated 

grievance procedure (65 FR 25623, May 3, 2000). 

Other amendments to the regulations in FY 2000 clarified the procedures for obtaining 

copies of hearing tapes and transcripts (65 FR 19293, April 11, 2000), made address 

changes to reflect the relocation of the MSPB headquarters office (65 FR 48885-48886, 

August 10, 2000), and corrected a citation in the rules governing the Board’s review of 

regulations of the Office of Personnel Management (OPM) (65 FR 57939, September 27, 

2000). 

During the fiscal year, the Board also launched two pilot projects aimed at improving 

case processing. In November 1999, the Board implemented its suspended case pilot 

project, which allows appellants and agencies up to 60 days additional time to pursue 

discovery and settlement efforts in their pending appeals. If the parties mutually request 

a 30-day suspension, the presiding administrative judge will grant it, without requiring 

the parties to provide evidence and argument to support the request. A second 30-day 

suspension will be granted if the parties agree that further time is necessary. By the end 

of FY 2000, judges had granted 319 initial 30-day suspensions and 98 additional 30-day 

suspensions. The pilot program will be evaluated during FY 2001. 

In June 2000, the Board launched an expanded pilot program at headquarters to 

expedite the processing of certain petitions for review (PFRs) of administrative judges’ 

initial decisions. The purpose of the program is to identify non-meritorious PFRs that 

can be disposed of quickly so that the 3-member Board can focus its resources on 

complex and precedential cases. If a PFR meets one of the eight criteria established for 

expedited processing (e.g., clearly not within the Board’s purview, no attempt to meet the 

criteria for Board review), the Office of the Clerk prepares a proposed decision and 

forwards it to the Board, rather than transferring the case to the Office of Appeals 

Counsel for preparation of a decision. A senior attorney detailed from the Office of 

Appeals Counsel to the Office of the Clerk of the Board conducts the reviews. 

In the first 6 months of the expedited PFR pilot program, approximately 8 percent of 

the 724 PFRs reviewed were expedited. The average time for processing the expedited 

cases—from receipt of the PFR to issuance of the decision—was 60 days. This pilot 

program will also be evaluated during FY 2001. 

In a further effort to improve case processing times at headquarters, the Board targeted 

its enforcement cases during the latter half of FY 2000. These cases arise after the Board 

issues a final order in a merits case and a party subsequently petitions the Board to 

3 
enforce its order. If the judge to whom the petition for enforcement is assigned 

determines that there is noncompliance with the Board’s order, the case is referred to the 

3-member Board for enforcement. Because enforcement cases cannot be closed until 

compliance is achieved, they frequently take longer to complete than other cases. 

By focusing on enforcement cases that had been pending at headquarters for more than 

300 days, the Board was able to reduce the number of such cases substantially. One of 

the methods employed to reduce the processing time was to hold meetings with 

processing agencies such as the Defense Finance & Accounting Service (DFAS), the 

National Finance Center (NFC), and the Postal Service to develop mutually beneficial 

systems for achieving full compliance with Board orders in a timely manner. As a result 

of those meetings, the agencies have developed checklists and other tools that advise 

agencies and appellants of the information required to process payments agreed upon in 

settlements or as ordered by the Board. The DFAS and NFC checklists are available on 

the MSPB Web site. The USPS is developing a compliance handbook. 

MERIT SYSTEMS STUDIES 

From the time it was established by the Civil Service Reform Act, the Board has had 

two separate authorities to conduct studies. The first authorizes the Board to conduct 

studies of the civil service and other merit systems in the Executive Branch and report to 

the President and Congress on whether the public interest in a civil service free of 

prohibited personnel practices is being adequately protected (5 U.S.C. § 1204(a)(3)). The 

other requires the Board to review the significant actions of OPM and submit an annual 

report with its analysis of whether the OPM actions reviewed are in accord with merit 

system principles and free from prohibited personnel practices (5 U.S.C. § 1206). 

On May 15, 2000, the requirement for the annual report on reviews of OPM 

significant actions was terminated in accordance with the “sunset” provisions of the 

Federal Reports Elimination and Sunset Act of 1995—the same law that terminated the 

requirement for MSPB to submit an annual report on its own activities. While the Board 

no longer needs to satisfy an annual reporting requirement with respect to OPM, it 

continues to review OPM actions, where appropriate, under its merit systems studies 

authority. 

During FY 2000, the Board published two reports of studies conducted by its Office of 

Policy and Evaluation (OPE) staff and five editions of the Issues of Merit newsletter. 

One report dealt with the Outstanding Scholar and Bilingual/Bicultural hiring authorities. 

The other reported the results of a survey of new hires on their experiences in seeking and 

applying for Federal jobs. 

(See the section titled “Merit Systems Studies” for summaries of these reports.) 

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

internal agency research needs. During the fiscal year, OPE conducted a survey of 

appellants and their representatives, agency representatives, and MSPB administrative 

4 
judges who participated in the pilot projects testing the use of video conferencing for 

hearings and the issuance of bench decisions by MSPB judges. The subsequent report of 

the survey results provided information that the Board and senior managers will use to 

evaluate these projects. The report was placed on the MSPB Web site, and a press 

release was issued to announce its availability. 

LEGISLATIVE ACTION 

In the Spring of 2000, the MSPB reassessed its appropriation request for FY 2001 and 

determined that while certain planned spending—primarily for information technology 

improvements—could be deferred, it was essential that the agency receive increased 

funding to cover rent increases and the cost of processing additional cases expected to 

result from the enactment of legislation restoring MSPB appeal rights to Federal Aviation 

Administration employees (discussed below). Discussions with the Office of 

Management and Budget (OMB) resulted in OMB support for the requested increase, and 

the President submitted an amended request for the MSPB to Congress in early June. 

By the end of July, House and Senate conferees on the Treasury and General 

Government Appropriations Act for FY 2001 had agreed that MSPB should receive the 

full amount requested by the President and by the agency—$29,437,000 (plus up to 

$2,430,000 in reimbursements from the Civil Service Retirement and Disability Trust 

Fund to cover the cost of processing retirement appeals). The House agreed to the 

Conference Report in September, and the Senate followed suit in October, but the bill 

was vetoed by the President (for reasons unrelated to MSPB) on October 30. The 

Treasury and General Government Appropriations Act for FY 2001 was not finally 

enacted until December 21, 2000, as part of the Consolidated Appropriations Act (H.R. 

4577, Public Law 106-554). Like many agencies, MSPB operated under a series of 21 

continuing resolutions, providing funding at the FY 2000 level, from October 1 until 

December 21, 2000. 

The second session of the 106th Congress also saw the enactment of a comprehensive 

reauthorization bill for the Federal Aviation Administration (FAA)—legislation that had 

been in the works since the 105th Congress (H.R. 1000, Public Law 106-181). When the 

President signed the Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century (FAIR-21) on April 5, 2000, MSPB appeal rights were restored to the 

approximately 40,000 employees of the FAA. Under the terms of the FY 1996 

Department of Transportation Appropriations Act, which authorized FAA to establish its 

own personnel system—free from most of the provisions of Title 5, United States Code, 

FAA employees lost their right to appeal personnel actions to MSPB. 

With the enactment of FAIR-21, FAA employees may now appeal to the Board with 

respect to any action that was appealable as of March 31, 1996 (the day before the FAA 

personnel system took effect). Unless otherwise authorized by law, however, an 

employee of the FAA must make an election among pursuing a claim through an appeal 

to MSPB, the FAA internal system (Guaranteed Fair Treatment), or any applicable 

grievance procedure under a collective bargaining agreement. 

5 
The restoration of MSPB appeal rights to FAA employees was expected to increase 

the appeals workload by about 100 cases per year. In the 6-month period between the 

time FAIR-21 was enacted and the end of the fiscal year, the MSPB received 66 FAA 

appeals, suggesting that the annual increase in workload will be somewhat higher than 

the 100 cases initially projected. The Act also raises a number of issues on which the 

Board can be expected to rule in coming years. (See the section titled “Significant 

Decisions of the Board” for a summary of Miller v. Department of Transportation, in 

which the Board ruled that the restoration of appeal rights to FAA employees is 

retroactive to April 1, 1996.) 

The impact of another bill enacted in the second session of the 106th Congress is more 

difficult to assess. The Federal Erroneous Retirement Coverage Corrections Act 

(FERCCA) was enacted as Title II of H.R. 4040, signed into law by President Clinton on 

September 19, 2000 (Public Law 106-265). This law—also in the works since the 105th

Congress—provides remedies for Federal employees placed in the wrong retirement 

system, provided the retirement coverage error was in effect for at least three years of 

service after December 31, 1986. 

Generally, FERCCA requires that employees placed in the wrong retirement system 

be identified, that their right to make coverage elections under the Act be explained to 

them, and that changes in retirement coverage be effected in accordance with such 

elections. The Act authorizes OPM to issue implementing regulations. 

Under the provisions of 5 U.S.C. § 8347(d) for the Civil Service Retirement System 

(CSRS) and 5 U.S.C. § 8461(e) for the Federal Employees Retirement System (FERS), 

the Board has jurisdiction over appeals from administrative actions affecting an 

individual’s or the Government’s rights and benefits under the retirement systems. 

Therefore, the Board can expect that issues arising from FERCCA will present 

themselves in future retirement appeals, perhaps beginning as early as FY 2002. Whether 

FERCCA will have any significant impact on MSPB’s appeals caseload, however, 

remains an open question. Much depends on how well OPM and agency personnel 

offices carry out their responsibilities under the Act. 

Other legislation of significance to MSPB was advanced—but not enacted—by the 

106th Congress. A proposal to authorize MSPB to conduct a 3-year pilot program to test 

the use of voluntary alternative dispute resolution (ADR) in the early stages of certain 

personnel disputes (that is, before the dispute results in a formal appeal to the Board) was 

introduced by Rep. George Gekas (R-PA) as H.R. 3312 in November 1999. Former 

Chairman Erdreich testified in support of this legislation on February 29, 2000, just days 

before he left office. In the Summer of 2000, the bill was considered by the House 

Judiciary Committee and House Government Reform Committee. 

Soon after the end of the fiscal year (on October 24, 2000), the House passed H.R. 

3312, after adopting a Manager’s Amendment to include language proposed by the 

MSPB Professional Association that would establish a pay schedule for MSPB 

6 
administrative judges comparable to that for administrative law judges. The Senate did 

not take up the legislation before the end of the 106th Congress in December, and H.R. 

3312 died. Both the ADR pilot program and administrative judge pay comparability 

proposals, however, are expected to be reintroduced in the 107th Congress. 

The Board has established an ADR Working Group—composed of the Chairman, 

Chief of Staff, and representatives from both regional and headquarters offices—to begin 

preparing for implementation of the ADR pilot program legislation. The group also is 

exploring ways in which the Board can expand its ADR initiatives even if the legislation 

is not enacted. 

OUTREACH 

The Board placed renewed emphasis on outreach during FY 2000, participating in 

approximately 220 outreach events. The Board members and attorneys from the 

headquarters legal offices, as well as administrative judges from the regional and field 

offices, participated in conferences and addressed groups representing both employees 

and agency management. Topics included updates on recent significant decisions of the 

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

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

ADR initiatives. 

The Office of Policy and Evaluation staff maintained an active outreach program to 

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

interagency or intergovernmental discussions and provided presentations on a full range 

of human resources management issues and topics that have been the subject of MSPB 

reviews. Because the data from MSPB studies is publicly available, it frequently finds its 

way into the professional literature. In some cases, the OPE staff also expands the reach 

of the Board’s efforts by authoring articles in professional journals. One such article, 

“Working for America: Does Public Service Motivation Make a Difference?,” appeared 

in the Review of Public Personnel Administration and was awarded the Outstanding 

Journal Article in Human Resource Management, 1999-2000, by the American Society 

for Public Administration. 

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

aware of outreach appearances by other employees, the Board maintains an electronic 

Outreach Calendar that is available to the entire staff at any time. Use of the Outreach 

Calendar avoids scheduling conflicts and enables employees who are addressing the same 

or similar topics to discuss their presentations with each other.

7 
Board Members 

CHAIRMAN 

BETH S. SLAVET was appointed Chairman of the Merit 

Systems Protection Board by President Clinton on December 

22, 2000. From August 15, 1995, following her nomination 

by President Clinton and confirmation by the Senate, she 

served as Vice Chairman of the Board. Additionally, she 

served as Acting Chairman from March 3, 2000, until her 

appointment as Chairman. Her term appointment to the Board 

expires March 1, 2002. Ms. Slavet served as Labor Counsel to 

the Committee on Labor and Human Resources of the U.S. 

Senate from March 1993 until January 1995. Previously, she 

was Legislative Counsel and Staff Director for U.S. 

Representative Chester Atkins (D-MA). From 1984 to 1992, 

Ms. Slavet practiced employment and labor law in 

Washington, DC. Prior to that, she served as the staff attorney 

to the American Federation of Government Employees Local 1812 in 

Washington, DC. She is a graduate of Brandeis University and received her 

J.D. degree 

from the Washington University School of Law. She is admitted 

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

Circuit and District of Columbia bar associations. 

For the first 5 months of FY 2000, BEN L. ERDREICH continued to serve as 

Chairman of the Board, having assumed that position on July 2, 1993, following his 

nomination by President Clinton and confirmation by the Senate. His term appointment 

expired March 1, 2000. Previously, Mr. Erdreich 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. 

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. 

8 
VICE CHAIRMAN 

BARBARA J. SAPIN was appointed as a member and 

Vice Chairman of the Merit Systems Protection Board by 

President Clinton on December 27, 2000. From 1995 until the 

time of her appointment, she served as General Counsel to the 

American Nurses Association (ANA). Previously, Ms. Sapin 

served as ANA’s Labor Counsel from 1990 to 1995. From 

1981 to 1990, she held several positions at the National Labor 

Relations Board, including attorney for the Appellate Court 

Branch, Washington, DC; field attorney in the Chicago 

Regional Office; and Senior Counsel to a Board member in 

Washington, DC. Ms. Sapin received her B.A. in Psychology 

from Boston University and her J.D. from Columbus School 

of Law, Catholic University of America. She is admitted to 

the District of Columbia Bar. 

MEMBER 

SUSANNE T. MARSHALL was sworn in as Member 

of the Board on November 17, 1997, following her 

nomination by President Clinton and confirmation by the 

Senate. Her term appointment expires March 1, 2004. 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.

9 
Board Organization 

The Chairman, Vice Chairman, and Member adjudicate the cases brought to the Board. 

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

heads report to the Chairman through the Chief of Staff. 

The Office of Regional Operations oversees the five MSPB regional offices (including five 

field offices), which receive and process initial appeals and related cases. Administrative judges 

in the regional and field offices are responsible for adjudicating assigned cases and for issuing 

fair and 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, 

proposed agency actions against administrative law judges, MSPB employee appeals, and other 

cases assigned by the Board. 

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

the Board in cases where a party petitions for review of a judge’s initial decision and in all other 

cases decided by the 3-member Board, except for those cases assigned to the Office of the 

General Counsel. The office also conducts the Board’s petition for review settlement program, 

processes interlocutory appeals of rulings made by judges, makes recommendations on 

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

Board on legal issues. 

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

headquarters, rules on certain procedural matters, and issues the Board’s Opinions and Orders. 

The office serves as the Board’s public information center, coordinates media relations, produces 

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

and administers the Freedom of Information Act and Privacy Act programs. The office also 

certifies official records to the courts and Federal administrative agencies, and manages the 

Board’s records and directives system, legal research programs, and the Government in the 

Sunshine Act program. 

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

Board and MSPB offices on matters of law arising in day-to-day operations. The office 

represents the Board in litigation, prepares proposed decisions for the Board on assigned cases, 

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

also conducts the Board’s ethics program and plans and directs audits and investigations. 

The Office of Policy and Evaluation carries out the Board’s statutory responsibility to 

conduct special studies of the civil service and other merit systems. Reports of these studies are 

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

also conducts an outreach program and responds to requests from Federal agencies for 

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

10 
The Office of Equal Employment Opportunity plans, implements, and evaluates the 

Board’s equal employment opportunity (EEO) programs. It processes complaints of alleged 

discrimination and furnishes advice and assistance on affirmative action initiatives to the Board’s 

managers and supervisors. 

The Office of Financial and Administrative Management administers the budget, 

procurement, property management, physical security, and general services functions of the 

Board. It develops and coordinates internal management programs and projects, including 

review of internal controls agencywide. It also administers the agency’s cross-servicing 

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

accounting and payroll services and with ABS (APHIS Business Services) for human resources 

management services. 

The Office of Information Resources Management 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. 

11 
Significant Decisions of the Board 

ADVERSE ACTIONS 

Herrera-Martinez v. Social Security Administration, 84 M.S.P.R. 426 (1999)

That misconduct was committed by following improper supervisory policies, when not 

done as a result of intimidation, does not provide a basis for mitigation; nor does 

condonation require mitigation, especially where the misconduct is clearly illegal. Thus, 

removal was reasonable for an SSA claims representative’s fraud and falsification on 

behalf of claimants, and her own acceptance of gifts. 

Stabile v. Department of Defense, 

85 M.S.P.R. 253 (2000)

Upon reconsideration of its precedent, the Board held that when it orders the agency to 

demote a manager to a lower-graded non-managerial position, without specifying that it 

should be done with the least reduction in pay, the agency must set the employee’s pay at 

the step of the lower-graded position that results in the least reduction in pay consistent 

with its pay-setting regulations on demotions for cause. If it has none, it must place him 

in the step of the lower-graded position that results in the least reduction in pay. To the 

extent that Kopec v. Army, 63 M.S.P.R. 576, and Slaughter v. Agriculture, 56 M.S.P.R. 

349, suggest to the contrary, the Board overruled them. In reviewing its established law 

on the subject, the Board also noted that absent an agreement between the parties, such a 

demotion order obligates the agency to place the appellant in a position at his former 

facility, and that if the placement is at a lower grade than he is ultimately entitled to, the 

appellant is to be notified of higher-graded vacancies the agency fills. 

Edwards & Rodriguez v. Department of the Army, 87 M.S.P.R. 27 (2000)

That his supervisor retains confidence in the appellant regardless of his misconduct is 

not dispositive because that judgment is the agency’s to make, not the supervisor’s. The 

Board also ruled here that the fact that the appellant returned to duty after his misconduct 

does not diminish the seriousness of his on-duty misconduct (alcohol use). 

Clark v. United States Postal Service, 

85 M.S.P.R.162 (2000)

Failure to provide an employee notice and an opportunity to respond to an appealable 

action that deprives him of his property right in his employment abridges his 

constitutional right to minimum due process, and such deprivation is not subject to a 

harmful error test. Thus, as here, where the appellant explained to the official trying to 

serve notice of a proposed removal on him that he was then too mentally and emotionally 

12 
upset to focus on or understand the letter, so that he could not sign for it, and the agency 

made no subsequent efforts to assure its delivery, he was denied due process when the 

decision to remove him was made without providing him a chance to know and respond 

to the charges. 

Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999)

EEO counseling sessions are “a semi-confidential means through which employees 

complain about the conduct of other agency personnel” under 29 C.F.R. § 1614.105. 

Further, complainants are likely to be emotionally distraught when they are reporting 

perceived discrimination. Thus, as to a disrespectful conduct charge, the Board 

concluded that these sessions are one of the contexts in which it is reasonable to afford 

them more leeway with regard to conduct than might otherwise be afforded in other 

employment situations. 

Johnson, et al. v. Department of Health and Human Services, 86 M.S.P.R. 501 (2000)

Because the Indian Child Protection and Family Violence Prevention Act, Pub. L. No. 

101-630 (25 U.S.C. § 3207), provides that the agency shall ensure that no one in a 

covered position has been found guilty of or entered a guilty or nolo plea to a covered 

crime, the agency must remove employees from covered positions if they have been so 

convicted or entered such a plea to a covered crime, irrespective of their good work 

performance and retention of supervisors’ trust. 

ATTORNEY FEES 

Joyce v. Department of the Air Force, 

83 M.S.P.R. 666 (1999)

Overruling its recent decision in Joyce v. Department of the Air Force, 74 M.S.P.R. 

112, the Board held here that in order to act on the merits of a case, it must make a 

preliminary determination of jurisdiction; thus, attorney fees cannot be awarded in the 

absence of such a finding, such as where an agency rescinds its action early in the appeal 

proceeding. The Board’s decision, however, reaffirmed its prior holdings that an 

appellant may be a prevailing party where, after filing his appeal, the agency voluntarily 

granted the relief sought, the administrative judge dismissed the appeal as moot, and the 

relief was causally related to the initiation of the appeal.

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

86 M.S.P.R. 48 (2000), OPM pet. for reconsideration filed June 13, 2000

This case is the first to hold that the Office of Special Counsel is “the agency 

involved” under 5 U.S.C. § 1204(m)(1), so that it, not the employing agency, may be 

required to pay attorney fees. The case also holds that the section is not retroactive, and 

applies only to portions of a case that occurred after October 29, 1994; that “prevailing 

party” under section 1204(m) is the same as under 5 U.S.C. § 7701(g); and that in 

applying the warranted-in-the-interest-of-justice test found in both laws, the 

13 
“substantially innocent” category may be applied to 1204(m) cases as it is under chapter 

77. 

 Auker v. Department of Defense, 

86 M.S.P.R. 468 (2000)

The language of 5 U.S.C. § 1221(g)(2) clearly states that the Board is without 

authority to award fees under it, absent a finding that a prohibited personnel practice was 

committed; however 5 U.S.C. § 7701(g)(1) covers all cases that come before the Board, 

including IRA appeals. Thus, fees may be awarded in an IRA appeal under 5 U.S.C. 

§ 7701(g)(1) under circumstances that would not permit an award under 5 U.S.C. 

§ 1221(g). 

Thomas v. United States Postal Service, 86 M.S.P.R. 635 (2000)

This decision holds, for the first time, that the expense of computer research is 

compensable in connection with an application for attorney fees. In other rulings relative 

to the reasonableness of an attorney fee award, the Board found that clerical work is not 

normally compensated at attorney rates, but that it may be where it is found to be 

“indistinguishable from the legal work,” and that the Board may make an award for 

reasonable and necessary long distance faxes, but where counsel charged a fixed rate for 

sending faxes locally, such charges are not an out-of-pocket expense that may be 

awarded. 

(The Board later reaffirmed this ruling, on reconsideration, 87 M.S.P.R. 331 (2000).) 

BACK PAY AND COMPLIANCE ISSUES 

Black v. Department of Justice, 

85 M.S.P.R. 650 (2000)

In restating its law, the Board held here that a status quo ante remedy does not require 

“perfect consistency” as to all aspects of an appellant’s pre- and post-removal positions, 

but that she is entitled to “all the essential privileges of [her] previous position.” The 

Board’s enforcement authority under 5 U.S.C. § 1204(a)(2) is not limited by the 

discretionary authority normally reposed in an agency official, so that, in this case, the 

appellant, a Special Agent, was entitled to reissuance of the type of badge and credentials 

she held prior to her removal, despite the general authority of the Commissioner to issue 

those documents. 

BOARD PROCEDURES 

Spradlin v. Office of Personnel Management, 84 M.S.P.R. 279 (1999)

The Board addressed two procedural issues in this case: (1) the administrative judge’s 

reliance on statements made during the status conference as evidence; and (2) the 

appellant’s untimely request for a hearing. With regard to the first issue, the Board found 

that the administrative judge erred when she considered the statements of the appellant 

14 
and her husband during the status conference regarding her inability to perform her 

former position as testimonial evidence supporting her claim for a disability retirement 

annuity. Unless the parties enter into stipulations of fact (which was not the case here), 

statements made by a party during a status conference are not evidence. With respect to 

the appellant’s untimely request for a hearing, the Board concluded that she was entitled 

to show that there was good cause to waive the time limit set in the acknowledgment 

order for requesting a hearing under the particular facts of this case. In this regard, the 

Board noted the fact that the acknowledgment order did not inform her that any untimely 

request must be accompanied by a showing of good cause for the delay and it was not 

clear in the proceedings below that the administrative judge had ruled on the appellant’s 

request for a hearing. 

Perez v. Department of the Navy, 

86 M.S.P.R. 168 (2000)

Although the issue of whether a videoconference hearing satisfies 5 U.S.C. 

§ 7701(a)(1) remained undecided, the Board remanded this case for an in-person hearing 

because of its facts. Specifically, the appellant claimed that the administrative judge had 

a view only of the backs of witnesses’ heads. In light of that claim and the issues of the 

appeal, the Board found “there are serious questions of witness credibility going to the 

central disputed fact in the case as to which the administrative judge could have 

supported different credibility determinations if he had held the hearing in-person.” 

DISCRIMINATION 

McFadden v. Department of Defense, 

85 M.S.P.R. 18 (1999)

This decision discusses the law under 29 C.F.R. § 1614.203(a)(5), which allows for a 

finding that an employee meets the test of being “disabled” if she is “regarded as” having 

an impairment. The Board held, in this regard, that an appellant who has an impairment 

that actually “substantially limits” her “major life activities” is not “regarded as” having 

an impairment under 29 C.F.R. § 1614.203(a)(5). Thus, her rights and burdens, including 

those surrounding accommodation, stem from actually being disabled. 

EVIDENCE 

Cheng v. Department of Agriculture, 

84 M.S.P.R. 144 (1999)

It is error for an administrative judge to rely on her own observations of the 

appellant’s conduct at the hearing to support a finding that the agency proved the charge. 

While considering such behavior may be appropriate in making credibility findings, it 

15 
does not constitute circumstantial evidence that the appellant engaged in the charged 

misconduct. 

Hylick v. Department of the Air Force, 85 M.S.P.R. 145 (2000)

The privilege against self-incrimination bars compelled testimony as to past crimes, 

but does not shelter new perjury. 

HATCH ACT 

Special Counsel v. Malone & Utley, 

84 M.S.P.R. 342 (1999)

Because the Board had found suspensions to be the appropriate penalties in these 

Hatch Act (prohibited political activities) cases, but the respondents had retired before the 

penalties could be imposed, the Board was faced with the question of whether debarment 

was an appropriate remedy. It concluded, based on its review of the relevant legislative 

history and case law, that it is not authorized to impose such a penalty. 

JURISDICTION 

McFadden v. Department of Defense, 

85 M.S.P.R. 18 (1999)

This decision restates the two situations in which constructive suspension claims may 

arise and the rules applicable with respect to that in which an employee who is absent 

from work for medical reasons asks to return with altered duties, but her request is 

denied. The Board here clarified that its law, which requires agencies to offer available 

light duty to an employee who requests to return to work with restrictions, contemplates a 

formal policy on light duty work equivalent to a regulation or contract. Evidence that the 

agency had accommodated other employees with light duty work and that it would have 

accommodated the appellant if possible does not meet this test. 

Lorenz v. United States Postal Service, 84 M.S.P.R. 670 (2000)

Nordhoff v. Navy, 78 M.S.P.R. 88, which applies where an employee claims 

constructive removal through involuntary disability retirement, was clarified to state that 

to it did not hold that whenever an employee shows that his medical condition could have 

been accommodated, an involuntary disability retirement claim will automatically 

succeed. He must generally make the agency aware of his need for accommodation, and 

request it. Further, the situation at the time of the retirement is not necessarily the only 

dispositive one, e.g., where the agency had only recently filled a job that would have 

provided the accommodation the appellant requested, he may still be entitled to prevail 

on a constructive removal claim. 

16 
Simonton v. United States Postal Service, 85 M.S.P.R. 189 (2000)

Only the Office of Workers’ Compensation programs (OWCP) may determine that an 

employee’s medical restrictions, once found to have been based on a compensable injury, 

are no longer work-related. Thus, when the agency determined that the appellant, 

although still not medically capable of performing his job, withdrew his limited duty 

based on its own ultra vires determination that his medical restrictions are no longer work 

related, and that action caused the appellant’s absence, his absence constituted a 

constructive suspension. That OWCP several months later made a similar finding only 

validates the agency’s act from the effective date of the OWCP decision. 

Wright v. Department of Veterans Affairs, 85 M.S.P.R. 358 (2000)

In this decision, after restating the test for jurisdiction over a claim that an action was 

made involuntary by intolerable working conditions, which are generally raised in 

connection with claims of coerced resignation and retirement, the Board held that a claim 

that return to work was prevented by such conditions (that is, an allegation of a 

constructive suspension) should also be judged against the same involuntariness 

standards. 

Hamilton v. United States Postal Service, 86 M.S.P.R. 215 (2000)

The Board found that the appellant proved that he was entitled to appeal an adverse 

action to the Board despite his excepted service status because he proved that he was a 

preference eligible under 5 U.S.C. § 2108. The decision relied on OPM guidance 

explaining that any Armed Forces Expeditionary Medal qualifies for veterans’ preference 

and that a DD Form 214 does not have to show the name of the theater or country of 

service for which the medal was awarded. 

Miller v. Department of Transportation, 86 M.S.P.R. 293 (2000)

Section 307 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century, Pub.L. No. 106-181, (the Ford Act) is effective beginning April 1, 1996, and 

provides Board appeal rights to FAA employees from any action that was appealable to 

the Board as of March 31, 1996. Thus, FAA employees may now appeal to the Board 

any matter that occurred since that time that was appealable prior to it. 

17 
PERFORMANCE ACTIONS 

Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999)

In Chapter 43 actions, the Board has required agencies since 1984 to produce evidence 

that OPM approved their performance appraisal systems. However, given the passage of 

time, the Board’s unawareness of any agency that had not received OPM’s approval, and 

the absence of a statutory requirement for renewing approval of a system once in place, 

the Board revisited the issue and held that “it is no longer necessary to perpetuate an 

outmoded paperwork requirement.” Thus, agencies are no longer required to submit 

evidence of proof of OPM approval if the issue is not raised by the appellant. 

REDUCTION IN FORCE 

Holland, et al. v. Department of the Army, 84 M.S.P.R. 269 (1999)

Delaying an appellant’s RIF rights by assigning her to a term position when she had 

right to a permanent position has the significant potential to denigrate or extinguish her 

current rights. Therefore, it is error to assign an employee to a term position when she 

had superior rights, as well, to an identical permanent job, irrespective of the agency’s 

claims that the appellant might not be harmed upon the expiration of that appointment 

and that another employee could be retained under this scheme. 

RESTORATION RIGHTS 

Mormon v. Department of Defense, 

84 M.S.P.R. 96 (1999)

Neither FECA nor its implementing regulations provides that a compensably-injured 

individual is precluded from exercising restoration rights upon recovery merely because 

her separation was voluntary, for example by resignation. Rather, to gain a right to 

restoration upon recovery, the appellant’s separation must only have resulted from, or 

been substantially related to, her compensable injury. 

RETIREMENT ISSUES 

Maurer, et al. v. Office of Personnel Management, 84 M.S.P.R. 156 (1999)

The decision in this appeal examines the complex of statutory provisions necessary to 

determine the proper disposition of excess contributions, that is, the contributions to the 

retirement system made by an employee who has worked beyond the point of maximum 

return, at which his annuity could no longer be increased by additional deductions (41 

years, 11 months under CSRS). 

18 
Hall v. Office of Personnel Management, 85 M.S.P.R. 371 (2000)

This decision notes the rule that an agency has a duty under 5 C.F.R. § 844.202 to 

apply for disability retirement for an employee before issuing a decision to remove her 

for cause when it concludes that she is incapable of deciding to file, but modifies Carillo 

v. OPM, 82 M.S.P.R. 61, by noting that both the CSRS and FERS regulations 

contemplate that an employing agency should effect its removal decision when it applies 

for disability retirement on the appellant’s behalf, and then provide the documentation of 

the separation to OPM. 

Rule v. Department of Veterans Affairs, 85 M.S.P.R. 388 (2000)

The holding in Nordhoff v. Navy, 78 M.S.P.R. 88, the case that sets the jurisdictional 

standard as to an appellant who claims to have been constructively removed through an 

involuntary disability retirement, was restated. After setting out the distinctions between 

“accommodation” for purposes of disability retirement and the Rehabilitation Act, the 

Board clarified Nordhoff to hold that an appellant can establish jurisdiction over a 

disability retirement if he can prove that there was an accommodation available on the 

date of his separation, either at or below his grade or level, that would have allowed him 

to continue his employment. He must establish, however, that he indicated to the agency 

that he wished to continue working despite his medical limitations. 

Watson, et al. v. Department of the Navy, 86 M.S.P.R. 318 (2000)

The Board clarified the rules that apply to the adjudication of law enforcement officer 

(LEO) retirement coverage. It stated that OPM’s regulations mandate a “positionoriented” approach. That approach more affirmatively takes into account the basic 

reasons for the existence of the position, and if it was not created for the purpose of 

investigation, apprehension, or detention, then the incumbents of the position would not 

be entitled to LEO credit 

SETTLEMENT 

Brown v. Department of the Interior, 

86 M.S.P.R. 546 (2000)

The decision sets out the rules for construction of a contract such as a settlement 

agreement where it appears that both parties did not give it the same construction. 

Among other rules, it notes that where the parties hold reasonable but different views of 

an ambiguous term that goes to the heart of the contract, no contract was formed. If the 

appellant was led to believe one thing during negotiations, and the agency was aware of 

that, the agreement should be interpreted in accordance with her understanding; if the 

appellant’s interpretation was reasonable, but the agency did not have reason to know that 

she attached a materially different meaning than it did, the agreement would be set aside 

for lack of mutual assent if the parties’ differences went to the heart of the contract. If 

19 
their differences did not go to its heart, the agreement would still be in effect, but neither 

party would be bound by the meaning attached by the other. Finally, where an 

agreement is not fully integrated, the appellant may introduce evidence to show that the 

parties agreed to consistent, additional terms. 

USERRA, VEOA, and VETERANS’ RIGHTS 

Tindall v. Department of the Army, 

84 M.S.P.R. 230 (1999)

The appellant’s claim that the agency did not consider the fact that he was a 5-point 

preference eligible in its hiring decision did not state a claim under the Uniformed 

Services Employment and Reemployment Rights Act (USERRA) because he was not 

claiming that he was denied a benefit based on his prior military service. However, for 

purposes of USERRA, the appellant’s service in the Army Reserve qualifies as “service 

in the uniformed services” (38 U.S.C. § 4303(13), (16)), and his claim of nonselection in 

favor of a nonreservist states a claim under USERRA. 

Spigner v. Department of the Air Force, 86 M.S.P.R. 677 (2000)

This decision discussed the rules under the Veterans Employment Opportunities Act 

(VEOA) as they apply to a veteran’s rights in connection with appointments. In its 

decision, the Board noted, inter alia, that under 5 C.F.R. § 333.201, “preference shall be 

given first to preference eligibles with compensable service-connected disability of 10 

percent or more, and second to other preference eligibles,” and that a preference eligible 

is not entitled to selection, but is only entitled to as much preference as he would have 

received in a competitive examination. No VEOA violation was found where a 5-point 

preference eligible was selected for a vacancy over the appellant, a 10-point eligible. 

WHISTLEBLOWER PROTECTION ACT 

Ganski v. Interior & OSC, 86 M.S.P.R. 32 (2000)

The holding in Thomas v. Treasury, 77 M.S.P.R. 224, that the disclosure of a violation 

of personnel rules is unprotected if it does not involve the type of waste, fraud, or abuse 

the WPA was intended to uncover, was overruled; instead, under 5 U.S.C. 

§ 2302(b)(8)(A), “the inquiry into whether a disclosure is protected under subsection (i) 

ends upon the determination that the appellant disclosed a violation of law, rule, or 

regulation,” without further examination of the type of matter disclosed. Subsection (ii), 

however, requires the substantive judgments to be made on whether the disclosure was of 

“gross” mismanagement or “a substantial and specific” danger. 

20 
Significant Decisions of the U.S. 

Court of Appeals for the Federal 

Circuit 

ATTORNEY FEES 

Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000) (en banc) 

The Court held that the Back Pay Act permits, and ethical considerations do not bar, 

the award of market-rate fees for work by union attorneys when such fees are deposited 

into a separate fund controlled exclusively by lawyers and the fund is used solely to 

support litigation on behalf of employee’s rights. 

FAILURE TO STATE A CLAIM 

Bivings v. Department of Agriculture, 225 F.3d 1331 (Fed. Cir. 2000) 

An employee failed to state a claim upon which relief could be granted where he was 

jointly employed by a State university and the Federal Government, and action by the 

State employer would be necessary to effect a remedy. 

HATCH ACT 

Kane v. Merit Systems Protection Board, 210 F.3d 1379 (Fed. Cir. 2000) 

The Hatch Act applies to part-time employees, even on days when they are not 

performing the duties of their positions. 

JURISDICTION 

Green v. General Services Administration, 220 F.3d 1313 (Fed. Cir. 2000) 

The regulation governing an employee’s withdrawal of a resignation, 5 C.F.R. § 

715.202(b), also applies to an employee’s request to withdraw from a voluntary 

separation or “buyout” agreement. An employee’s commitment to enter into a separation 

agreement is a valid reason for the agency to deny an employee's request to withdraw 

from such an agreement, and where the separation is otherwise voluntary, the Board does 

not have jurisdiction. 

Hesse v. Department of State, 217 F.3d 1372 (Fed. Cir. 2000) 

21 
The 1994 amendments to the Whistleblower Protection Act did not make the denial, 

revocation, or suspension of a security clearance a “personnel action” under 5 U.S.C. § 

2302(a)(2) that could be raised in an individual right of action filed with the Board after 

seeking corrective action from the Office of Special Counsel. 

Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000) 

The Board may not assume that all jurisdictional elements are met in order to consider 

an individual right of action appeal on the merits. 

PENALTIES 

Gregory v. United States Postal Service, 212 F.3d 1296 (Fed. Cir. 2000), 

cert. granted, 121 S.Ct. 1076, 

(U.S. Feb. 20, 2001) (No. 00-758) 

In determining whether a penalty imposed on an employee is reasonable, the 

employing agency and the Board may not consider prior disciplinary actions taken 

against the employee that are the subject of ongoing proceedings challenging their merits. 

RETIREMENT 

Billinger v. Office of Personnel Management, 206 F.3d 1404 (Fed. Cir. 2000) 

A congressional employee was eligible to receive credit for his unused sick leave 

under the Civil Service Retirement System where the leave was accumulated under a 

“formal leave system” consisting of written rules. Where OPM relies on an employing 

agency certification that affects an employee’s rights under the CSRS, the certification is 

reviewable by the Board. 

Dick v. Office of Personnel Management, 216 F.3d 1353 (Fed. Cir. 2000) 

A Federal employee is not entitled to reinstatement of his prior disability 

annuity if his disability recurs after his employment has ended. 

USERRA 

Lourens v. Merit Systems Protection Board, 193 F.3d 1369 (Fed. Cir. 1999) 

The Board’s jurisdiction under the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA) does not extend to spouses and widows of 

members of the uniformed service. 

22 
WHISTLEBLOWER PROTECTION ACT 

Diefenderfer v. Merit Systems Protection Board, 194 F.3d 1275 (Fed. Cir. 1999) 

The Board does not have jurisdiction over whistleblower claims brought by employees 

of the Federal Aviation Administration. 

NOTE: This decision was issued prior to the enactment of the Wendell H. Ford Aviation 

Investment and Reform Act for the 21st Century, Pub.L. No. 106-181, signed April 5, 

2000. This Act restored the MSPB appeal rights of FAA employees. 

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. 

23 
FY 2000 Case Processing Statistical 

Data 

SUMMARY TABLE OF MSPB DECISIONS IN FY 2000 

Regional Office (RO)/Field Office (FO) 

Decisions: 

 Appeals 1 6,391 

 Addendum Cases 2 979 

 Stay Requests 3 119 

TOTAL RO/FO Decisions 7,489 

ALJ Decisions - Original Jurisdiction Cases 4 17 

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Appeals 1,225 

 PFRs - Addendum Cases 238 

 Reviews of Stay Request Rulings 1 

 Requests for Stay of Board Order 1 

 Reopenings 5 3 

 Court Remands 6 244 

 Compliance Referrals 110 

 EEOC Non-concurrence Cases 0 

 Arbitration Cases 5 

 Subtotal 1,827 

 Original Jurisdiction 7 41 

TOTAL Board Decisions 8 1,868 

TOTAL Decisions (Board, ALJ, RO/FOs) 9,374 

See next page for footnotes.

24 
FOOTNOTES TO SUMMARY TABLE 

1 Includes 6 appeals adjudicated by the ALJ at Board headquarters. 

2 Includes 317 requests for attorney fees, 11 requests for compensatory damages 

(discrimination cases only), 4 requests for consequential damages (whistleblower cases 

only), 458 petitions for enforcement, 170 Board remand cases, and 19 court remand 

cases. (Three of the petitions for enforcement were adjudicated by the ALJ at Board 

headquarters.) 

3 Includes 76 stay requests in whistleblower cases and 43 in non-whistleblower cases. 

(One of the stay requests was adjudicated by the ALJ at Board headquarters.) 

4 Covers decisions issued by ALJ; all are initial decisions except 1 recommended 

decision in a Hatch Act case. Case type breakdown: 5 OSC corrective actions (4 

initial cases and 1 compliance case), 7 OSC disciplinary actions (5 Hatch Act and 2 

non-Hatch Act), and 5 actions against ALJs. 

5 Includes 1 case reopened by the Board on its own motion and 2 cases where OPM 

requested reconsideration. 

6 Includes 237 consolidated cases. 

7 Covers final Board decisions. Case type breakdown: 6 OSC stays; 2 OSC corrective 

actions (1 enforcement case and 1 reopening), 5 OSC disciplinary actions (2 

reopenings, 2 attorney fee cases, and 1 remand), 2 actions against ALJs, and 26 

regulation review requests (including 6 court remands). 

8 In addition to the 1,868 cases closed by the Board with a final decision, there were 3 

interlocutory appeals decided by the Board in FY 2000. Interlocutory appeals 

typically raise difficult issues or issues not previously addressed by the Board. 

25 
Regional Decisions

26 
DISPOSITION OF INITIAL APPEALS DECIDED 

IN FY 2000 BY TYPE OF CASE

Type of Case Decided Dismissed

Not

Dismissed Settled Adjudicated

Adverse Action by Agency 2968 1346 45% 1622 55% 1113 69% 509 31%

Termination of 

Probationers

296 266 90% 30 10% 28 93% 2 7%

Reduction in Force 249 129 52% 120 48% 46 38% 74 62%

Performance 126 22 17% 104 83% 70 67% 34 33%

Acceptable Level of 

 Competence (WIGI)

39 22 56% 17 44% 13 76% 4 24%

Suitability 77 18 23% 59 77% 36 61% 23 39%

CSRS Retirement: Legal 629 289 46% 340 54% 15 4% 325 96%

CSRS Retirement: 

Disability

261 118 45% 143 55% 28 20% 115 80%

CSRS Retirement: 

 Overpayment

146 54 37% 92 63% 58 63% 34 37%

FERS Retirement 672 256 38% 416 62% 195 47% 221 53%

Individual Right of Action 276 177 64% 99 36% 56 57% 43 43%

Other 652 560 86% 92 14% 58 63% 34 37%

Total 6391 3257 51% 3134 49% 1716 55% 1418 45%

Dismissed and Not Dismissed columns are percentage of Decided column 

Settled and Adjudicated columns are percent of Not Dismissed column 

TYPES OF INITIAL APPEALS DECIDED IN FY 2000 

Adverse Action (2968)

47%

Individual Right of Action 

(276)

4%

FERS Retirement (672)

11%

CSRS Retirement: 

Overpayment (146)

2%

CSRS Retirement: 

Disability (261)

4% CSRS Retirement: Legal 

(629)

10%

Performance (126)

2%

Other Appeals (652)

10%

Suitability (77)

1%

Reduction in Force (249)

4%

Acceptable Level of 

Competence (39)

1%

Termination of 

Probationers (296)

4%

Total Number of Initial Appeals: 6,391 

27 
DISPOSITION OF INITIAL APPEALS IN FY 2000 

THAT WERE NOT DISMISSED 

Settled (1716)

55%

Mitigated (51)

2%

Affirmed (1074)

34%

Other (13)

0%

Reversed (280)

9%

Total Number of Initial Appeals that were Not Dismissed: 3,134 

DISPOSITION OF INITIAL APPEALS ADJUDICATED ON THE 

MERITS (i.e., Not Dismissed or Settled) IN FY 2000 

Affirmed (1074)

76%

Other (13)

1%

Mitigated (51)

4%

Reversed (280)

20%

Based on 1,418 initial appeals adjudicated on the merits

(Percentages do not total 100% because of rounding) 

28 
INITIAL APPEALS DECIDED IN FY 2000 BY AGENCY 

Decided Dismissed1 Not Dismissed Settled2 Adjudicated 

OPM * 1491 587 39.4% 904 60.6% 261 28.9% 643 71.1%

Postal Service 1326 730 55.1% 596 44.9% 422 70.8% 174 29.2%

Veterans Affairs 569 323 56.8% 246 43.2% 161 65.4% 85 34.6%

Navy 475 222 46.7% 253 53.3% 162 64.0% 91 36.0%

Army 396 193 48.7% 203 51.3% 118 58.1% 85 41.9%

Justice 349 221 63.3% 128 36.7% 82 64.1% 46 35.9%

Treasury 316 164 51.9% 152 48.1% 82 53.9% 70 46.1%

Defense 293 140 47.8% 153 52.2% 89 58.2% 64 41.8%

Air Force 271 146 53.9% 125 46.1% 83 66.4% 42 33.6%

Interior 168 106 63.1% 62 36.9% 44 71.0% 18 29.0%

Agriculture 138 85 61.6% 53 38.4% 46 86.8% 7 13.2%

Health, Human Servs. 74 34 45.9% 40 54.1% 31 77.5% 9 22.5%

Commerce 69 48 69.6% 21 30.4% 14 66.7% 7 33.3%

Transportation 68 46 67.6% 22 32.4% 15 68.2% 7 31.8%

Social Security 68 38 55.9% 30 44.1% 19 63.3% 11 36.7%

GSA 58 24 41.4% 34 58.6% 13 38.2% 21 61.8%

Labor 42 24 57.1% 18 42.9% 15 83.3% 3 16.7%

Energy 23 14 60.9% 9 39.1% 4 44.4% 5 55.6%

EPA 23 12 52.2% 11 47.8% 8 72.7% 3 27.3%

TVA 23 20 87.0% 3 13.0% 3 100.0% 0 .0%

HUD 16 13 81.3% 3 18.8% 2 66.7% 1 33.3%

National Credit Union Adm. 15 5 33.3% 10 66.7% 3 30.0% 7 70.0%

FEMA 10 4 40.0% 6 60.0% 3 50.0% 3 50.0%

NASA 10 5 50.0% 5 50.0% 5 100.0% 0 .0%

SBA 9 5 55.6% 4 44.4% 4 100.0% 0 .0%

GPO 8 6 75.0% 2 25.0% 1 50.0% 1 50.0%

Smithsonian 8 3 37.5% 5 62.5% 5 100.0% 0 .0%

FDIC 7 3 42.9% 4 57.1% 2 50.0% 2 50.0%

EEOC 6 3 50.0% 3 50.0% 1 33.3% 2 66.7%

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

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

Broadcasting Bd. of Governors 4 2 50.0% 2 50.0% 1 50.0% 1 50.0%

Education 4 2 50.0% 2 50.0% 2 100.0% 0 .0%

Other 4 1 25.0% 3 75.0% 1 33.3% 2 66.7%

Export-Import Bank 3 0 0.0% 3 100.0% 1 33.3% 2 66.7%

FCC 3 1 33.3% 2 66.7% 1 50.0% 1 50.0%

Percentages may not add to 100 due to rounding. 

*Of the 1,491 appeals in which OPM was the agency, 1,417 were retirement cases involving 

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

the Federal Employees Retirement System.

 

1

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

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

29 
INITIAL APPEALS DECIDED IN FY 2000 BY AGENCY 

(continued) 

Decided Dismissed1 Not Dismissed Settled2 Adjudicated 

NARA 3 1 33.3% 2 66.7% 1 50.0% 1 50.0%

Adm. Office, US Courts 2 2 100.0% 0 .0% 0 0.0% 0 .0%

Boundary & Water Comm., 

US & Mexico 2 1 50.0% 1 50.0% 1 100.0% 0 .0%

CPSC 2 2 100.0% 0 .0% 0 0.0% 0 .0%

State 2 1 50.0% 1 50.0% 1 100.0% 0 .0%

District of Columbia 2 2 100.0% 0 .0% 0 0.0% 0 .0%

Merit Systems Protection Bd 2 2 100.0% 0 .0% 0 0.0% 0 .0%

Soldiers' & Airmen's Home 2 1 50.0% 1 50.0% 1 100.0% 0 .0%

ACTION 1 1 100.0% 0 .0% 0 0.0% 0 .0%

Chemical Safety/Hazard 

Investigation Board 1 1 100.0% 0 .0% 0 0.0% 0 .0%

CIA 1 0 0.0% 1 100.0% 0 0.0% 1 100.0%

Federal Housing Finance Bd 1 0 0.0% 1 100.0% 0 0.0% 1 100.0%

Federal Trade Comm. 1 0 0.0% 1 100.0% 1 100.0% 0 .0%

James Madison Memorial 

Fellowship Foundation 1 1 100.0% 0 .0% 0 0.0% 0 .0%

NRC 1 0 0.0% 1 100.0% 0 0.0% 1 100.0%

Panama Canal Comm 1 1 100.0% 0 .0% 0 0.0% 0 .0%

Peace Corps 1 1 100.0% 0 .0% 0 0.0% 0 .0%

Pension Benefit Guaranty Corp. 1 0 0.0% 1 100.0% 0 0.0% 1 100.0%

Railroad Retirement Board 1 1 100.0% 0 .0% 0 0.0% 0 .0%

SSS 1 1 100.0% 0 .0% 0 0.0% 0 .0%

Tax Court 1 1 100.0% 0 .0% 0 0.0% 0 .0%

US Internat'l Develpmnt Agy 1 0 0.0% 1 100.0% 1 100.0% 0 .0%

US Botanic Garden 1 1 100.0% 0 .0% 0 0.0% 0 .0%

TOTAL 6391 3257 51.0% 3134 49.0% 1716 54.8% 1418 45.2%

Percentages may not add to 100 due to rounding. 

 

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

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

30 
INITIAL APPEALS ADJUDICATED* IN FY 2000 BY AGENCY 

Adjudicated Affirmed Reversed Mitigated/Modified Other 

OPM 643 482 75.0% 144 22.4% 4 .6% 13 2.0%

Postal Service 174 115 66.1% 39 22.4% 20 11.5% 0 .0%

Veterans Affairs 85 71 83.5% 9 10.6% 5 5.9% 0 .0%

Navy 91 63 69.2% 27 29.7% 1 1.1% 0 .0%

Army 85 68 80.0% 14 16.5% 3 3.5% 0 .0%

Justice 46 35 76.1% 7 15.2% 4 8.7% 0 .0%

Treasury 70 58 82.9% 6 8.6% 6 8.6% 0 .0%

Defense 64 59 92.2% 5 7.8% 0 .0% 0 .0%

Air Force 42 27 64.3% 11 26.2% 4 9.5% 0 .0%

Interior 18 12 66.7% 4 22.2% 2 11.1% 0 .0%

Agriculture 7 6 85.7% 1 14.3% 0 .0% 0 .0%

Health, Human Servs. 9 7 77.8% 2 22.2% 0 .0% 0 .0%

Commerce 7 7 100.0% 0 .0% 0 .0% 0 .0%

Transportation 7 2 28.6% 5 71.4% 0 .0% 0 .0%

Social Security 11 8 72.7% 3 27.3% 0 .0% 0 .0%

GSA 21 20 95.2% 0 .0% 1 4.8% 0 .0%

Labor 3 3 100.0% 0 .0% 0 .0% 0 .0%

Energy 5 4 80.0% 0 .0% 1 20.0% 0 .0%

EPA 3 3 100.0% 0 .0% 0 .0% 0 .0%

TVA 0 0 .0% 0 .0% 0 .0% 0 .0%

HUD 1 1 100.0% 0 .0% 0 .0% 0 .0%

National Credit Union Adm. 7 6 85.7% 1 14.3% 0 .0% 0 .0%

FEMA 3 3 100.0% 0 .0% 0 .0% 0 .0%

NASA 0 0 .0% 0 .0% 0 .0% 0 .0%

SBA 0 0 .0% 0 .0% 0 .0% 0 .0%

GPO 1 1 100.0% 0 .0% 0 .0% 0 .0%

Smithsonian 0 0 .0% 0 .0% 0 .0% 0 .0%

FDIC 2 2 100.0% 0 .0% 0 .0% 0 .0%

EEOC 2 2 100.0% 0 .0% 0 .0% 0 .0%

NLRB 0 0 .0% 0 .0% 0 .0% 0 .0%

SEC 0 0 .0% 0 .0% 0 .0% 0 .0%

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

Education 0 0 .0% 0 .0% 0 .0% 0 .0%

Other 2 2 100.0% 0 .0% 0 .0% 0 .0%

Export-Import Bank 2 1 50.0% 1 50.0% 0 .0% 0 .0%

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

Percentages may not add to 100 due to rounding. 

* ADJUDICATED means adjudicated on the merits, i.e., not dismissed or settled.

31 
INITIAL APPEALS ADJUDICATED* IN FY 2000 BY AGENCY 

(continued) 

Adjudicated Affirmed Reversed Mitigated/Modified Other 

NARA 1 1 100.0% 0 .0% 0 .0% 0 .0%

Adm. Office, US Courts 0 0 .0% 0 .0% 0 .0% 0 .0%

Boundary & Water Comm., 

US & Mexico 0 0 .0% 0 .0% 0 .0% 0 .0%

CPSC 0 0 .0% 0 .0% 0 .0% 0 .0%

State 0 0 .0% 0 .0% 0 .0% 0 .0%

District of Columbia 0 0 .0% 0 .0% 0 .0% 0 .0%

Merit Systems Protection Bd 0 0 .0% 0 .0% 0 .0% 0 .0%

Soldiers' & Airmen's Home 0 0 .0% 0 .0% 0 .0% 0 .0%

ACTION 0 0 .0% 0 .0% 0 .0% 0 .0%

Chemical Safety/Hazard 

Investigation Board 0 0 .0% 0 .0% 0 .0% 0 .0%

CIA 1 1 100.0% 0 .0% 0 .0% 0 .0%

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

Federal Trade Comm. 0 0 .0% 0 .0% 0 .0% 0 .0%

James Madison Memorial 

Fellowship Foundation 0 0 .0% 0 .0% 0 .0% 0 .0%

NRC 1 0 .0% 1 100.0% 0 .0% 0 .0%

Panama Canal Comm 0 0 .0% 0 .0% 0 .0% 0 .0%

Peace Corps 0 0 .0% 0 .0% 0 .0% 0 .0%

Pension Benefit Guaranty Corp. 1 1 100.0% 0 .0% 0 .0% 0 .0%

Railroad Retirement Board 0 0 .0% 0 .0% 0 .0% 0 .0%

SSS 0 0 .0% 0 .0% 0 .0% 0 .0%

Tax Court 0 0 .0% 0 .0% 0 .0% 0 .0%

US Internat'l Develpmnt Agy 0 0 .0% 0 .0% 0 .0% 0 .0%

US Botanic Garden 0 0 .0% 0 .0% 0 .0% 0 .0%

TOTAL 1418 1074 75.7% 280 19.7% 51 3.6% 13 .9%

Percentages may not add to 100 due to rounding. 

* ADJUDICATED means adjudicated on the merits, i.e., not dismissed or settled.

32 
Headquarters Decisions

33 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS ON

APPEALS DECIDED IN FY 2000 BY TYPE OF CASE 

Type of Case Decided Dismissed Settled Denied Denied/Reopened Granted

Adverse Action by 

 Agency 572 37 6.5% 10 1.8% 438 76.6% 27 4.7% 60 10.5% 

Termination of 

 Probationers 

38 0 0.0% 6 15.8% 29 76.3% 1 2.6% 2 5.3% 

Reduction in Force 66 4 6.1% 1 1.5% 51 77.3% 3 4.6% 7 10.6% 

Performance 22 2 9.1% 0 0.0% 18 81.8% 1 4.6% 1 4.6% 

Acceptable Level of 

 Competence (WIGI) 7 0 0.0% 0 0.0% 4 57.1% 1 14.3% 2 28.6% 

Suitability 15 1 6.7% 0 0.0% 14 93.3% 0 0.0% 0 0.0% 

CSRS Retirement: 

 Legal 135 9 6.7% 4 3.0% 96 71.1% 12 8.9% 14 10.4% 

CSRS Retirement: 

 Disability 43 0 0.0% 0 0.0% 35 81.4% 2 4.7% 6 14.0% 

CSRS Retirement: 

 Overpayment 17 2 11.8% 2 11.8% 10 58.8% 0 0.0% 3 17.7% 

FERS Retirement 89 4 4.5% 1 1.1% 56 62.9% 2 2.3% 26 29.2% 

Individual Right of 

 Action 76 3 4.0% 1 1.3% 54 71.1% 2 2.6% 16 21.1% 

Other 145 11 7.6% 1 0.7% 107 73.8% 11 7.6% 15 10.3% 

Total 1225 73 6.0% 26 2.1% 912 74.5% 62 5.1% 152 12.4%

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL 

DECISIONS ON APPEALS DECIDED IN FY 2000 

Granted (152)

12%

Settled (26)

2%

Denied (912)

75%

Denied but Reopened 

(62)

5%

Dismissed (73)

6%

Total Number of Petitions for Review: 1,225 

34 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL 

DECISIONS ON APPEALS GRANTED IN FY 2000

Initial Decision Reversed 

(39)

26%

Initial Decision Affirmed 

(22)

14%

Other (2)

1%

Case Remanded (88)

58%

Agency Action Mitigated 

(1)

1%

Based on 152 Petitions for Review Granted 

DISPOSITION OF PETITIONS FOR REVIEW OF 

INITIAL DECISIONS ON APPEALS DENIED 

BUT REOPENED IN FY 2000

Initial Decision 

Reversed (2)

3%

Initial Decision 

Affirmed (31)

Other (5) 50%

8%

Agency Action 

Mitigated (0)

0%

Case Remanded 

(24)

39%

 

Based on 62 Petitions for Review Denied But Reopened 

35 
PETITIONS FOR REVIEW DECIDED IN FY 2000 BY AGENCY 

Decided Dismissed Settled Denied Denied/Reopened Granted 

OPM 259 15 5.8% 7 2.7% 199 76.4% 15 5.8% 23 8.9%

Postal Service 243 18 7.4% 3 1.2% 178 73.3% 17 7.0% 27 11.1%

Navy 130 9 6.9% 2 1.5% 87 66.9% 5 3.9% 27 20.1%

Army 98 3 3.1% 6 6.1% 78 79.6% 2 2.0% 9 9.2%

Veterans Affairs 86 4 4.7% 1 1.2% 58 67.4% 3 3.5% 20 23.3%

Defense 62 2 3.2% 1 1.6% 46 74.2% 2 3.2% 11 17.7%

Air Force 62 2 3.2% 0 0.0% 52 83.9% 4 6.5% 4 6.5%

Justice 61 8 13.1% 4 6.6% 45 73.8% 1 1.6% 3 4.9%

Treasury 56 2 3.6% 1 1.8% 39 69.6% 3 5.4% 11 19.6%

Interior 26 3 11.5% 0 0.0% 18 69.2% 4 15.4% 1 3.9%

GSA 22 1 4.6% 0 0.0% 17 77.3% 2 9.1% 2 9.1

HHS 19 2 10.5% 0 0.0% 11 57.9 0 0.0% 6 31.6%

Agriculture 17 0 0.0% 0 0.0% 16 94.1% 1 5.9% 0 0.0%

Social Security 10 0 0.0% 0 0.0% 8 80.0% 1 10.0% 1 10.0%

Commerce 9 0 0.0% 0 0.0% 8 88.9% 0 0.0% 1 11.1%

Energy 9 1 11.1% 0 0.0% 8 88.9% 0 0.0% 0 0.0%

SBA 7 0 0.0% 0 0.0% 7 100.0% 0 0.0% 0 0.0%

HUD 6 0 0.0% 0 0.0% 5 83.3% 0 0.0% 1 16.7%

Labor 6 0 0.0% 0 0.0% 5 83.3% 0 0.0% 1 16.7%

Transportation 4 0 0.0% 0 0.0% 2 50.0% 2 50.0% 0 0.0%

FDIC 4 0 0.0% 0 0.0% 4 100.0% 0 0.0% 0 0.0%

NASA 4 0 0.0% 1 25.0% 1 25.0% 0 0.0% 2 50.0%

NARA 3 0 0.0% 0 0.0% 2 66.7% 0 0.0% 1 33.3%

TVA 3 0 0.0% 0 0.0% 2 66.7% 0 0.0% 1 33.3%

EPA 2 1 50.0% 0 0.0% 1 50.0% 0 0.0% 0 0.0%

EEOC 2 0 0.0% 0 0.0% 2 100.0% 0 0.0% 0 0.0%

GPO 2 0 0.0% 0 0.0% 2 100.0% 0 0.0% 0 0.0%

Smithsonian 2 1 50.0% 0 0.0% 1 50.0% 0 0.0% 0 0.0%

Broadcasting Board of 

 Governors 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Education 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

FEMA 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Fed. Mediation & 

 Conciliation Serv. 1 1 100.0% 0 0.0% 0 0.0% 0 0.0% 0 0.0%

Holocaust Memorial 

 Council 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Merit Systems 

 Protection Bd. 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Nuclear Regulatory 

 Comm. 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Other 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

Pension Benefit 

 Guaranty Corp. 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

SEC 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

SSS 1 0 0.0% 0 0.0% 1 100.0% 0 0.0% 0 0.0%

TOTAL 1225 73 6.0% 26 2.1% 912 74.5% 62 5.1% 152 12.4%

36 
Merit Systems Studies

The following are summaries of the findings and recommendations from the reports 

issued by the Board during FY 2000: 

Restoring Merit to Federal Hiring: Why Two Special Hiring Programs Should be Ended 

This report addresses entry-level hiring for professional and administrative jobs in the 

Federal Government. It presents concerns about the potential harm to merit-based hiring 

that exists because of the continuing use of two non-competitive hiring mechanisms—the 

Outstanding Scholar and the Bilingual/Bicultural hiring authorities. 

These two programs were created in 1981 by a Federal court consent decree that 

settled a lawsuit alleging that an employment test used at that time for more than 100 

entry-level jobs had an adverse impact on African American and Hispanic job seekers. 

The programs were created to supplement competitive hiring procedures. The study 

found that the programs are no longer needed to achieve the goal of a representative 

workforce. However, despite the passage of two decades and the disappearance of 

employment conditions that originally gave rise to the programs, their use by Federal 

agencies persists. 

The report shows that both of these special hiring programs conflict with the 

requirement of the first statutory merit system principle—that hiring be based on merit. 

Neither program has a mechanism that allows Federal employers to distinguish the best 

among the eligible job candidates. 

The Outstanding Scholar Program permits the Government to hire non-competitively a 

college graduate who has a high baccalaureate grade point average or upper rank in class, 

without regard to that candidate’s field of study or qualifications relative to other 

candidates. The Bilingual/Bicultural Program allows the Government to hire a candidate 

who meets only minimum job requirements if that candidate also has Spanish language 

ability or knowledge of Hispanic culture. Although these hiring programs may have 

contributed to the goal of ensuring a representative workforce in the past, competitive 

hiring today more effectively serves that objective within the more desirable context of 

hiring based on merit. 

The report also provides evidence that the Outstanding Scholar Program has been 

misused in recent years by being used as a primary hiring method rather than as a 

supplement to competitive hiring. While its original intent was to increase the 

representation of African Americans and Hispanics in the Federal workforce, most 

agencies no longer use it for that purpose. Instead, the emphasis is on the program’s use 

as an easy way to hire any college graduate with a 3.5 grade point average (GPA) even 

though college GPA, alone, is not a good predictor of job success. Finally, the report 

establishes that the terms of the consent decree—which was intended to operate only 

until the employment tests challenged in the 1981 lawsuit could be replaced—have 

37 
themselves become an impediment to the development of such tests. The availability of 

these two special non-competitive hiring programs, which offer managers speed, ease of 

use, and control over the hiring process, creates little incentive for agencies to use 

currently available competitive procedures or to develop new and better ones. 

The report presents a case for ending the consent decree and the two hiring authorities 

it created. It further provides a series of recommendations that address the need for 

improvements in how the Government assesses candidates for jobs in entry-level 

professional and administrative positions. 

Competing for Federal Jobs: Job Search Experiences of New Hires 

This report focuses on the job search experiences of Federal employees who were 

hired competitively through Federal agencies’ delegated examining units during the 

period June 1996 through December 1997. The report is based on a survey of nearly 

2000 hires, and is a follow-up to the Board’s August 1999 report, “The Role of Delegated 

Examining Units: Hiring New Employees in a Decentralized Civil Service.” 

The survey revealed that relatives and friends were the most common source of job 

information for the applicants (who later became employees). The majority of the new 

hires also said that although they had access to the Internet, only about half of them used 

it to search for Federal jobs and only 17 percent found the job for which they were hired 

on the Internet. In general, the new employees’ responses to the Board’s survey were 

fairly positive, suggesting that the agency examining units are doing a good job 

conducting most aspects of the examining process. Survey results indicate that applicants 

found applying for jobs to be generally easy and that hiring decisions were made within a 

reasonable period of time. 

However, the survey results also suggest that there is room for improvement. The new 

hires felt that the time between submission of their applications and being called for an 

interview was too long, as was the time between being told they had the job and being 

able to report for work. Many of the new employees reported that during their job 

searches they seldom received timely feedback—and sometimes no feedback at all—

about the status of their applications. This signals trouble for Federal agencies trying to 

hire good people in a competitive job market. 

The report makes several recommendations to agencies and to OPM to address the 

problems identified by the survey. Because timeliness of hiring is a high priority for job 

applicants and for Federal managers, the Board recommends that agencies look for ways 

to expedite the hiring process. Agencies should also be sure that the staff who deal with 

job applicants are careful to treat them in accord with customer service standards, and 

that knowledgeable staff are readily available to address applicants’ questions. 

The Board also recommends that OPM and agencies improve vacancy announcements 

posted on the Internet to make them intelligible to applicants who are not well versed in 

38 
Federal terminology and the Federal hiring process. Vacancy announcements should be 

an effective recruiting tool that helps sell the Government as an employer of choice. The 

Board noted that electronic announcements accessible on the Internet should be visually 

appealing, informative, and easy to navigate. This is not currently the case with many of 

the vacancy announcements that appear on Federal web sites. 

Issues of Merit 

In addition to the major reports summarized above, the Board published five issues of 

its newsletter, Issues of Merit, in FY 2000. The following are some of the topics 

addressed: 

Handling poor performers. Two important conclusions the Board has drawn from its 

work on this issue are that a relatively small percentage of poor performers can have a 

disproportionately large effect on an organization, and that Federal departments and 

agencies do not do a good enough job of confronting and resolving individual instances 

of poor performance. 

Merit-based hiring and special hiring programs. During FY 2000, the Board updated 

the information gathered for the its report on special non-competitive hiring programs 

(described above). It found that more than a third of all hiring into entry-level 

professional and administrative jobs was still being done through the non-merit-based 

Outstanding Scholar and the Bilingual/Bicultural programs. 

Employee selection methods. The Board has concluded that the Government needs 

better methods of assessing candidates. Federal agencies currently rely most heavily on 

methods (such as evaluation of training and experience) that are least likely to predict job 

performance. Methods that have greater predictive value (such as cognitive testing) are 

used much less frequently. The Board recommends that more attention be paid—and 

more resources devoted—to improving assessment devices. 

Alternative work schedules. In an article titled “The Fallacy of Face Time,” the Board 

discusses the attitudes of many managers and supervisors who resist flexible work 

arrangements, often evaluating their employees by the number of hours they are 

physically present in the workplace rather than their accomplishments or contributions 

toward organizational results. 

Quality of job candidates. The Board found that human resources (HR) directors are 

evenly divided on the question of their agencies’ ability to fill jobs with highly qualified 

candidates. Those who are satisfied with candidate quality credit the delegation of 

examining authority to agencies and the creation of a broader applicant pool made 

possible by Internet recruiting. Those HR directors who are unsatisfied with candidate 

quality cited their inability to offer competitive compensation packages. The Rule of 

Three, the manner in which veterans’ preference is provided, and time-in-grade 

restrictions were also cited by HR directors as factors that make it difficult to hire top 

talent for Federal jobs. 

39 
Workforce diversity and the minority/non-minority perception gap. In an article titled 

“The Real Challenge of Workforce Diversity,” the Board noted that the Government has 

made significant progress toward achieving workforce diversity in terms of minority and 

female representation. Even after the significant downsizing of the 1990s, the percentage 

of women and minority workers in every race/national origin category has steadily 

increased since 1990, with some of the largest percentage increases at the higher grade 

levels. Only Hispanics remain underrepresented in the Federal workforce. Despite these 

facts, however, there remains a significant and persistent disagreement between minority 

and non-minority employees over whether or not the workplace is free from blatant 

discrimination. Such divergent points of view can be damaging in a workforce where 

team efforts are critical. 

Federal career intern program. An Executive Order issued in FY 2000 established 

the Federal Career Intern Program. Based on the its body of research on recruitment, 

selection, and workforce management practices, the Board published four suggestions for 

increasing the likelihood of success in the program: (1) start with a good applicant pool 

that is the result of recruitment efforts that do not cut corners; (2) use valid, merit-based 

screening and placement procedures; (3) use the 2-year excepted appointment period as 

an extension of the examining process; and (4) take intern career development seriously. 

Political activity among Federal employees. The Board believed that an election year 

was an appropriate time to revisit the extent to which Federal employees were active in 

politics, especially given the easing of Hatch Act restrictions in 1993. A comparison of 

results from several editions of the Board’s triennial “Merit Principles Survey” revealed 

that overall Federal worker participation in partisan politics remains relatively low. 

Family-friendly programs. Results from the Board’s latest “Merit Principles Survey” 

make it clear that family-friendly programs (e.g., flexible and compressed work 

schedules, job sharing, and sick leave for family care) are important to a large number of 

Federal workers. The Board noted that family-friendly policies are an important tool for 

Government employers who may not be able to offer salaries as attractive as their private 

sector counterparts. The Board suggested that Federal managers make family-friendly 

programs available to workers to the extent possible. 

Length of time to fill jobs. It is widely believed that it takes too long to fill Federal 

jobs. Many supervisors attribute delays to their human resources offices. Data the Board 

collected for a study of merit promotion suggest that while it may be possible for human 

resources offices to improve their timeliness on recruitment and placement actions, 

supervisors may also need to adjust their expectations regarding how quickly a job can—

or should—be filled. The Board noted in the article, “Length of Time to Fill Jobs: 

Expectations Are High—And Unmet,” that more than half of the supervisors surveyed do 

not mind a lengthy hiring process if the result is a high quality employee. 

40 
FY 2000 Financial Summary 

(Dollars in thousands) 

FINANCIAL SOURCES 

Appropriations $27,481 

Civil Service Retirement and Disability Trust Fund 2,421 

Reimbursements 4

Total Revenue $28,913

OBLIGATIONS INCURRED

Personnel Compensation $18,995 

Personnel Benefits $3,450 

Benefits, Former Employees 8

Travel of Persons 359

Transportation of Things 54 

Rental Payments to GSA 1,839 

Communications, Utilities, and Miscellaneous Charges 1,043 

Printing and Reproduction 123 

Other Services 2,820 

Supplies and Materials 186

Equipment 989 

Total Obligations Incurred $29,866

Obligated Balance $47

41 
For Additional Information 

The MSPB World Wide Web site contains 

information about the Board and its 

functions, where to file an appeal, and 

how the Board’s adjudicatory process 

works. 

At the Web site, you can get Board 

regulations, appeal and PFR forms, 

important telephone and FAX numbers, 

and e-mail addresses for the 

headquarters, regional, and field offices. 

Complete decisions from July 1, 1994, 

are available for downloading. The Web 

site also provides weekly Case 

Summaries—an easy way to keep up 

with changes in Board case law. 

From the Web site, you can download 

recent Board reports and special studies 

on civil service issues. 

The Board’s Web site is 

http://www.mspb.gov. 

The Board’s toll-free telephone 

number is 1-800-209-8960. 

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