U.S. Merit Systems Protection Board 

Washington, D.C. 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

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

Systems Protection Board. The report reviews the significant activities of the Board during fiscal year 1997, including 

the Federal employee appeals and other cases decided by the Board. 

The Board and its regional and field offices closed 10,154 cases during fiscal year 1997. The Board's administrative 

judges decided 8,314 appeals, stay requests, and addendum cases. The 3-member Board decided 1,740 cases under its 

appellate jurisdiction, principally petitions for review (PFRs) of administrative judges' initial decisions. The Board also 

completed action on 100 cases arising under its original jurisdiction—cases brought by the Special Counsel, proposed 

actions against administrative law judges, and requests to review regulations of the Office of Personnel Management 

(OPM). 

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

processing time at Board headquarters for PFRs of initial decisions by administrative judges was 183 days. This means 

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

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

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

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

upheld by its principal reviewing court, the U.S. Court of Appeals for the Federal Circuit. Of the 444 final Board 

decisions reviewed by the court in fiscal year 1997, 96 percent were unchanged by the court's decisions. 

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

of OPM. In fiscal year 1997, the Board issued reports on the representation of Hispanics in the Federal work force and 

employees' views of how well agencies are adhering to the statutory merit system principles. 

Respectfully submitted, 

Ben L. Erdreich 

Chairman 

Susanne T Marshall 

Member 

Beth S. Slavet 

Vice Chairman 
Contents 

Board Mission and Jurisdiction 6 

Board Members 8 

Board Organization 10 

Regional and Field Office jurisdictions 12 

Fiscal Year 1997 Case Processing - Statistical Highlights 13 

Adjudication 19 

Litigation 28 

Studies 31 

Administration 35 

For Additional Information 38 

Customer Service Standards 39 
Board Mission and Jurisdiction 

Mission 

The U.S. Merit Systems Protection Board (MSPB) was established by the Civil 

Service Reform Act of 1978 (CSRA), Public Law 95-454, as a successor agency to the 

Civil Service Commission. It is an independent, quasi-judicial agency in the Executive 

Branch that serves as the guardian of Federal merit systems. 

The Board's mission is to ensure that Federal employees are protected against 

abuses by agency management, that Executive Branch agencies make employment 

decisions in accordance with the merit system principles, and that Federal merit 

systems are kept free of prohibited personnel practices. The Board accomplishes its 

mission by: 

 Hearing and deciding employee appeals from agency personnel actions under 

the Board's appellate jurisdiction; 

 Hearing and deciding cases brought by the Special Counsel involving alleged 

abuses of the merit systems, and other cases arising under the Board's original 

jurisdiction; 

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

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

 Providing oversight of the significant actions and regulations of the Office of 

Personnel Management (OPM) to determine whether they are in accord with the 

merit system principles and free of prohibited personnel practices. 

Jurisdiction 

Appellate Jurisdiction 

Agency actions that Federal employees may appeal to the Board include: 

adverse actions (removals, suspensions of more than 14 days, reductions in grade or 

pay, and furloughs of 30 days or less), performance-based removals or reductions in 

grade, denials of within-grade increases, certain reduction-in-force (RIF) actions, 

denials of restoration to duty or reemployment rights, and removals from the Senior 

Executive Service (SES) for failure to be recertified. Determinations by OPM in 

employment suitability and retirement matters are also appealable to the Board. 

Under the Whistleblower Protection Act of 1989 (WPA), personnel actions that 

are not normally appealable to the Board may result in the right to a Board appeal under 

certain circumstances. Included are appointments, promotions, details, transfers, 

reassignments, and decisions concerning pay, benefits, awards, education, or training. 

Such an action may be appealed to the Board only if the appellant alleges that the 

action was taken because of whistleblowing, and if the appellant first filed a complaint 

with the Special Counsel and the Special Counsel did not seek corrective action from 

the Board. 
Under the Uniformed Services Employment and Reemployment Rights Act 

(USERRA), the Board has jurisdiction over complaints brought for a violation of Chapter 

43 of Title 38, relating to the employment and reemployment rights of persons who have 

served in the uniformed services. Under USERRA, the Board may hear appeals of 

personnel actions that would not otherwise be appealable, if an appellant alleges that 

the action was the result of discrimination based on service in the uniformed services. 

When an issue of discrimination prohibited by the Civil Rights Act of 1964 and 

other anti-discrimination laws is raised in connection with an appealable action, the 

Board has jurisdiction over both the appealable action and the discrimination issue. 

Such appeals are termed "mixed cases." In these cases, an appellant may ask the 

Equal Employment Opportunity Commission (EEOC) to review the final decision of the 

Board. If the EEOC disagrees with the Board's decision on the discrimination issue, the 

case is returned to the Board. The Board may concur with EEOC, affirm its previous 

decision, or affirm its previous decision with modifications. If the Board does not concur 

in the EEOC decision, the case is referred to a Special Pan el for a final decision. (A 

Special Panel is convened when needed and is composed of a Chairman appointed by 

the President, one member of the Board, and one EEOC commissioner.) 

For the Board to have jurisdiction over an appeal, it must possess jurisdiction 

over both the action and the individual filing the appeal. The employees and others 

(e.g., applicants for employment, annuitants in retirement cases) who may appeal 

specific actions vary in accordance with the law and regulations governing the specific 

ac tion. For some actions, classes of employees, such as political appointees, and 

employees of specific agencies are excluded. 

With respect to adverse actions, which account for almost half of all appeals to 

the Board, the following categories of employees have appeal rights: (1) employees in 

the competitive service and excepted service employees with veterans preference 

(called "preference eligibles") who have completed their probationary period; (2) 

non-preference eligible employees in the excepted service (excluding those in the 

Postal Service and certain other agencies) who have completed two years current 

continuous service in an Executive agency; and (3) non-preference eligible supervisors 

and managers in the Postal Service. 

Original Jurisdiction 

Cases that arise under the Board's original jurisdiction include: 

 Corrective and disciplinary actions brought by the Special Counsel against 

agencies or Federal employees who are alleged to have committed 

prohibited personnel practices, or to have violated certain civil service 

laws, rules or regulations; 

 Requests for stays of personnel actions alleged by the Special Counsel to 

result from prohibited pesonnel practices; 

 Disciplinary actions brought by the Special Counsel alleging violation of 

the Hatch Act; 

 Certain proposed actions brought by agencies against administrative law 

judges 

 Requests for review of an OPM regulation or of an agency's 

implementation of an OPM regulation; and, 
 Informal hearings in cases involving proposed performance-based 

removals from the Senior Executive Service. 

Judicial Review 

With two exceptions, judicial review of final Board decisions in both appellate and 

original jurisdiction cases lies in the U.S. Court of Appeals for the Federal Circuit. The 

exceptions are as follows: 

Board decisions in "mixed cases" may be appealed to an appropriate U.S. district 

court. (A Special Panel decision also may be appealed to an appropriate U.S. district 

court.) If review of all issues except the discrimination issue is requested, however, a 

"mixed case' appellant may elect review by the Federal Circuit. 

In Hatch Act cases involving State or local Government employees, judicial 

review lies first in the U.S. district courts and then in the regional courts of appeals. 

The Director of OPM may petition the Board for reconsideration of a final 

decision. The Director also may seek judicial review in the Federal Circuit of Board 

decisions that have a substantial impact on a civil service law, rule, regulation, or policy. 
Board Members 

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

with no more than two of its three members from the same political party. Board 

members are appointed by the President, confirmed by the Senate, and serve 

overlapping, non-renewable 7-year terms. 

CHAIRMAN 

BEN L. ERDREICH became Board Chairman on 

July 2,1993, following his nomination by President 

Clinton and confirmation by the Senate. His term 

appointment expires March 1, 2000. Previously, he 

served for 10 years in the U.S. Congress as the 

representative of the 6th District of Alabama. He was a 

member of the Committee on Banking, Finance and 

Urban Affairs and chaired its Subcommittee on Policy 

Research and Insurance. Mr. Erdreich was a Member 

of the Jefferson County (Alabama) Commission from 

1974 to 1982. Prior to that, he was a partner in the firm 

of Cooper, Mitch & Crawford, Attorneys, in Birmingham, 

Alabama. He served in the Alabama House of 

Representatives from 1970 to 1974. He is a graduate of 

Yale University and received his J.D. degree from the 

University of Alabama School of Law. He is admitted to 

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

District of Columbia, Alabama, and Birmingham bar associations. 

VICE CHAIRMAN 

BETH S. SLAVET took the oath of office as Vice 

Chairman and member of the U.S. Merit Systems 

Protection Board on August 15, 1995, following her 

nomination by President Clinton and confirmation by the 

Senate. Her term appointment expires March 1, 2002. 

Ms. Slaver 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. Slaver was an attorney in private practice in 

Washington, DC, representing public and private sector 

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

staff attorney to the American Federation of Government Employees Local 1812 in 

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

from the Washington University School of Law. She is admitted to the District of 

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

associations. 
MEMBER 

SUSANNE T. MARSHALL was sworn in as Member of 

the Board on November 17, 1997, following her 

nomination by President Clinton and confirmation by the 

Senate. Her term appointment expires March 1, 2004. 

Prior to her appointment, she was Professional Staff 

Member to the Senate Committee on Governmental 

Affairs, having also served previously as Deputy Staff 

Director. Before that, she was Staff Assistant to the 

House Committee on Government Operations. She 

attended the University of Maryland in Munich, Germany, 

and The American University. 

ANTONIO C. AMADOR, whose term appointment expired March 1, 1997, continued to 

serve as Member of the Board until June 30, 1997. He had been a member of the Board 

since November 1, 1990. 
Board Organization 

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

the Board. Each has his/her individual office. 

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

Board. Office heads report to the Chairman through the Chief of Staff 

The Office of Regional Operations provides leadership to the MSPB regional 

offices in carrying out their adjudicatory and administrative functions. The five regional 

offices (including five field offices) receive and process initial appeals and related cases 

filed with the Board. Administrative judges in the regional and field offices are 

responsible for adjudicating these cases and for issuing fair and well-reasoned 

decisions. 

The Office of Appeals Counsel prepares proposed decisions that recommend 

appropriate action in cases where a party petitions for review of an administrative 

judge's initial decision and all other cases decided by the 3-member Board, except for 

those cases assigned to the Office of the General Counsel. The office conducts legal 

research and submits proposed opinions to the Board for final adjudication. It also 

conducts the Board's petition for review settlement program, processes interlocutory 

appeals of rulings made by administrative 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 Administrative Law Judge adjudicates Hatch Act cases, 

disciplinary action complaints brought by the Special Counsel, and proposed agency 

actions against administrative law judges. The Administrative Law Judge may 

adjudicate corrective actions brought by the Special Counsel, may decide an initial 

Special Counsel stay request under authority delegated by individual Board members, 

and may hold informal hearings in performance-based removals from the SES. The 

Administrative Law Judge also adjudicates MSPB employee appeals, appeals involving 

classified information affecting national security, and other cases assigned by the 

Board. 

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

Board headquarters, rules on certain procedural matters, and issues the Board's 

Opinions and Orders. The office serves as the Board's public information center, 

including providing information on the status of cases, distributing copies of Board 

decisions and publications, and operating the Board's Library and online information 

services. The office answers requests under the Freedom of Information and Privacy 

Acts at the Board's headquarters and responds to all other information requests except 

those for which the Office of the General Counsel or the Office of Policy and Evaluation 

is responsible. The office also certifies official records to the courts and Federal 

administrative agencies, manages the Board's records and directives system, and 

manages the Government in the Sunshine Act program. 
The Office of the General Counsel, as legal counsel to the Board, provides 

advice to the Board and its organizational components on matters of law arising in 

dayto-day operations. Pursuant to the Board's statutory authority under 5 U.S.C. § 

1204(i), the office represents the Board in litigation. It also prepares proposed decisions 

for the Board on assigned cases, including requests to review OPM regulations and 

cases involving enforcement of a Board order. The office coordinates the Board's 

legislative policy and congressional relations functions; responds to requests for 

non-case related information from the White House, Congress, and the media; and 

produces public information publications and the agencys annual report to the President 

and the Congress. The office also conducts the Board's ethics program and plans and 

directs audits and investigations. 

The Office of Policy and Evaluation carries out the Board's statutory 

responsibility to conduct special studies of the civil service and other merit systems, 

including annual oversight reviews of the Office of Personnel Management. Reports of 

these studies are directed to the President and the Congress and are distributed to a 

national audience. The office disseminates information about the Board's studies 

through outreach appearances, articles, and electronic media. The office also responds 

to requests from Federal agencies for information, advice, and assistance on issues that 

have been the subject of Board studies. 

The Office of Equal Employment Opportunity plans, implements, and 

evaluates the Board's equal employment opportunity (EEO) programs. It processes 

complaints of alleged discrimination and furnishes advice and assistance on affirmative 

action initiatives to the Board's managers and supervisors. 

The following three administrative divisions operate under the supervision of the 

Chief of Staff: 

 The Financial and Administrative Management Division administers the 

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

general services functions of the Board. It also develops and coordinates internal 

management programs and projects, including review of internal controls 

agencywide. 

 The Human Resources Management Division develops policies and manages 

the Board's human resources programs and assists managers, employees, and 

applicants for employment. It administers staffing, classification, employee 

relations, performance management, payroll, personnel security, and training 

and development functions. 

 The Information Resources Management Division develops, implements, and 

maintains the Board's automated information systems in order to help the Board 

manage its caseload efficiently and carry out its administrative and research 

rcsponsibilities. 
U.S. Merit Systems Protection Board 

Regional and Field Office Jurisdictions 

Atlanta Regional Office - Alabama, Florida, Georgia, Mississippi, South 

Carolina, and Tennessee 

Central Regional Office - Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; 

Michigan; Minnesota; Missouri; Ohio; and Wisconsin

Dallas Field Office - Arkansas, Louisiana, Oklahoma, and Texas 
Northeastern Regional Office - Delaware, Maryland (except the counties of 

Montgomery and Prince George's), New Jersey (except the counties of Bergen, Essex, 

Hudson, and Union), Pennsylvania, and West Virginia. 

Boston Field Office - Connecticut, Maine, Massachusetts, New 

Hampshire, Rhode Island, and Vermont 

New York Field Office - New Jersey (counties of Bergen, Essex, 

Hudson, and Union), New York, Puerto Rico, and Virgin Island 

Washington Regional Office - Washington, DC; Maryland (counties of 

Montgomery and Prince George's); North Carolina; Virginia; and all overseas areas not 

otherwise covered 

Western Regional Office - California and Nevada 

Denver Field Office - Arizona, Colorado, Kansas (except Kansas City), 

Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and 

Wyoming

Seattle Field Office - Alaska, Hawaii, Idaho, Oregon, Washington, and 

Pacific overseas areas 
Fiscal Year 1997 Case Processing 

Statistical Highlights 

Cases Decided by MSPB in FY 1997 

RO/FO Decisions

Appeals 7,223 

Addendum Cases1 962 

Stay Requests2 129 

TOTAL RO/FO Decisions 8.314 

Board Decisions 

Appellate Jurisdiction: 

PFRs -Appeals 1,460 

PFRs - Addendum Cases1 152 

Reviews of Stay Request Rulings 0 

Requests for Stay of Board Order 5 

Reopenings3 22 

Court Remands 14 

Compliance Referrals 61 

EEOC Non-concurrence Cases 3 

Arbitration Cases 23 

Subtotal 1,740 

Original jurisdiction (see separate report) ' 100 

TOTAL Board Decisions 1,840 

TOTAL Decisions (Board + RO/FOs) 10,154 

1

Includes requests for attorney fees, requests for compensatory damages (discrimination cases 

only), requests for consequential damages (whistleblower cases only), petitions for enforcement, Board 

remand cases, and court remand cases. 

2

Includes 92 stay requests in whistleblower and cases and 37 in non-whistleblower cases. 

3 Includes 12 cases reopened by the Board on its own motion and 10 cases where OPM requested 

reconsideration. 

4

 Includes 98 Board decisions and 2 initial decisions issued by ALJ. 
Kinds of Appellate Jurisdiction Cases 

The kinds of appellate jurisdiction cases in which the Board's administrative 

judges issue initial decisions or orders are: 

• Appeal (or Initial Appeal) — A request by an appellant that the Board review an 

agency action. 

• Stay Request — A request that the Board order a stay of an agency action 

(authorized only where the appellant alleges that the action was or is to be taken 

because of whistleblowing). 

• Motion for Attorney Fees — A request by an appellant who prevails in an appeal that 

the Board order the agency to pay the appellant's attorney fees. 

• Request for Compensatory Damages — A request by an appellant who prevails in a 

mixed case appeal on the basis of discrimination for payment of compensatory 

damages under the Civil Rights Act of 1991. 

• Request for Consequential Damages — A request by an appellant who prevails in a 

whistleblower appeal for payment of consequential damages, as authorized by 5 

U.S.C. § 1221. 

• Petition for Enforcement — A request by a party to an appeal that the Board enforce 

a final decision or order. 

• Remand — A case returned to an administrative judge by the Board or court, after 

an initial decision has been issued, for additional processing and issuance of a new 

initial decision. 

Attorney fee cases, petitions for enforcement, requests for damages, and 

remands, as a group, are termed "addendum cases" by the Board. 

Approximately 20 percent of initial appeals decided result in the filing of a petition 

for review at Board headquarters. Initial decisions in addendum cases and orders issued 

on stay requests are also subject to review by the Board. In addition, the Board has 

authority to review an arbitrator's award when the subject of the grievance is an action 

appealable to the Board and the grievant raises a discrimination issue in connection 

with the action. The kinds of appellate jurisdiction cases in which the Board issues final 

decisions or orders are: 

• Petition for Review — A request by a party that the Board review an initial decision 

of an administrative judge. A petition for review may be filed with respect to an initial 

decision on an appeal or in an addendum case. 

• Request to Review Stay Ruling— A request by a party that the Board review an 

administrative judge's order ruling on a stay request. 

• Petition to Review Arbitrator's Award — A request that the Board review an 

arbitrator's award where the employee has grieved an action appealable to the 

Board and the employee raises an issue of prohibited discrimination. 

• Reopening on the Board's Own Motion —A case that the Board reopens on its own 

motion, to reconsider either an initial decision of an administrative judge or a final 

Board decision. 
• OPM Request for Reconsideration — A request by the Director of OPM that the 

Board reconsider a final decision. 

• Court Remand— A case returned to the Board by a court, after an appellant or the 

Director of OPM has sought judicial review of a final Board decision, for issuance of a 

new decision. Also, a case returned by a court where the Board has requested 

remand. 

• EEOC Non-concurrence — A mixed case returned to the Board by the EEOC, after 

an appellant has sought EEOC review of a Board decision, in which the EEOC does 

not concur with the Board decision on the discrimination issue. 

• Compliance Referral — A case referred to the Board by an administrative judge for 

enforcement of a final Board decision or order, upon the administrative judge's 

finding that a party is not in compliance. 

• Request for Stay of Board Order — A request by a party that a final order of the 

Board be stayed pending judicial review or a request for reconsideration by the 

Director of OPM. 

Appellate Case Processing in Fiscal Year 1997 

Regional and Field Offices 

• Case Receipts — The regional and field offices received 8,721 new cases (initial 

appeals, addendum cases, and stay requests) in FY 1997—down less than 2 

percent from the number received in FY 1996. At the end of the fiscal year, there 

were 2,695 cases pending in the regional and field offices. 

• Cases Decided— The administrative judges decided 8,314 cases in FY 1997. 

This number includes 7,223 initial appeals and 962 addendum cases. There 

were 129 orders ruling on stay requests-92 in whistleblower cases and 37 in nonwhistleblower cases. 

• Disposition — Of the 7,223 initial appeals decided, 3,344 (46 percent) were 

dismissed. Of the dismissals, 71 percent were for lack of jurisdiction, agency 

cancellation of the action, or appellant withdrawal of the appeal; 8 percent were 

dismissed as untimely; and 22 percent were dismissed without prejudice to later 

refiling. (Percentages do not total 100 because of rounding.) The accompanying 

charts show the outcomes of appeals that were not dismissed and the disposition of 

appeals adjudicated on the merits. 

• Settlement Rate — Of the 3,879 appeals that were not dismissed, 1,957 were 

settled, for an overall settlement rate of 50 percent. The settlement rate for adverse 

action cases was 66 percent; for performance cases, 64 percent; and for denials of 

within-grade increases, 75 percent. 
• Relief for Appellants — Considering the number of appeals settled (1,957) and those 

in which the agency action was reversed or mitigated (587), appellants received relief 

in 65 percent of the appeals that were not dismissed. Of the 1,922 appeals that were 

not dismissed or settled, 30 percent resulted in reversal or mitigation of the agency 

action. 

• Processing Time — The average processing time for initial appeals and addendum 

cases was 108 days. Of the initial appeals decided, 81 percent were decided within 

120 days. 

OUTCOMES OF FY 1997 APPEALS NOT DISMISSED 

Based on 3,879 initial appeals not dismissed. 

(Percentages do not total 100 because of rounding.) 

DISPOSITION OF INITIAL APPEALS ADJUDICATED ON THE MERITS IN FY 1997 

Based on 1,922 adjudicated initial appeals. (Percentages do not total 100 because 

of rounding.) 
• Types of Actions Appealed — Of the initial appeals decided, 50 percent were 

appeals of agency adverse actions, 10 percent were RIF appeals, and 2 percent were appeals of performance-based actions. Retirement cases (both 

CSRS and FERS) accounted for 22 percent of total appeals decided, and the 

remainder involved other types of agency actions. 

• Whistleblower Appeals — There were 610 whistle-blower appeals and stay 

requests decided. Of this number, 242 were individual right of action (IRA) 

appeals in which the appellant was required to exhaust the procedures of the 

Office of Special Counsel, 276 were direct appeals to the Board that included 

an allegation of reprisal for whistleblowing, and 92 were requests to stay an action 

allegedly based on whistleblowing. 

• Relief for Appellants in Whistleblower Appeals — Of the 518 whistleblower appeals 

decided (242 IRA appeals and 276 appeals of otherwise appealable actions), 

307 (59 percent) were dismissed. In the other 211 whistleblower appeals, 

appellants received relief—through settlement, reversal, or mitigation—in 143 

(68 percent). 

• Mixed Cases — Allegations of discrimination were raised in 1,833 of the initial 

appeals decided; however, in 1,452 of those appeals, the discrimination issue 

was not decided because the case was dismissed (902) or settled (534) or the 

allegation was withdrawn (16). The remaining 381 mixed case appeals resulted 

in a finding of no discrimination in 375 (98 percent) and a finding of 

discrimination in 6 (2 percent). 

Board Headquarters 

• Case Receipts — At headquarters, the Board received 1,744 new petitions for 

review and other cases (both appellate and original jurisdiction) in FY 1997—

up over 4 percent from FY 1996. At the end of the fiscal year, there were 925 

cases pending. 

• Cases Decided — The 3-member Board decided 1,840 cases in FY 1997. Of 

these, 1,460 were petitions for review of initial decisions on appeals, 152 were 

petitions for review of initial decisions in addendum cases, 128 were other 

appellate jurisdiction cases, and 100 were original jurisdiction cases. 

• Disposition of PFRs — Of the 1,460 petitions for review of initial decisions on 

appeals, 8 percent were dismissed, 2 percent were settled, and 70 percent were 

denied for failure to meet the criteria for review. The remaining 20 percent 

consisted of 13 percent granted and 7 percent denied but simultaneously 

reopened by the Board. 

• Outcome of PFRs Reviewed — Of the decisions in the 292 PFRs that were 

granted or denied but simultaneously reopened, 31 percent affirmed the initial 

decision, 16 percent reversed it, 41 percent remanded the case to the 

administrative judge, and 2 percent mitigated the agency action. In the remaining 

10 percent, the initial decision was vacated or the case was forwarded to a 

regional/field office for processing. 

• Processing Time — The average processing time for all petitions for review (on 

both initial appeals and addendum cases) was 183 days. The Board processed 

28 percent of the PFRs on initial appeals in 110 days or less, averaging 85 days. 
• Additional fiscal year 1997 case processing statistics, including a breakdown of 

appeals by agency, are contained in the Board publication, Cases Decided by the 

US. Merit Systems Protection Board, FY 1997.

TYPES OF INITIAL APPEALS DECIDED IN FY 1997 

Total Number of Initial Appeals: 7,223 (Percentages do not total 100 because of 

rounding.) 

MSPB DECISIONS, FY 1988 – 1997 

FY89 FY88 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97

Regional/Field 

Offices

7124 7846 7847 8388 8371 7811 8552 10888 8925 8314

HQ Appellate 

Jurisdiction

1484 1510 1582 1891 1894 1576 2031 2226 1329 1740

HQ Original 

Jurisdiction

13 21 43 51 16 37 75 49 46 100

Total 

Decisions

8621 9377 9472 10330 10281 9424 10658 13163 10300 10154

NOTES: (1) Regional/Field Office decisions are on initial appeals, addendum cases, and stay requests. 

(2) HQ appellate jurisdiction decisions are on petitions for review and other types of appellate cases. 

(3) HQ original jurisdiction decisions are on Special Counsel cases and other types of original jurisdiction 

cases. 
Adjudication

Appellate Jurisdiction Cases 

Although the Board addressed new issues and areas of the law in fiscal year 

1997, it focused much of its attention on matters previously addressed, issuing a 

number of significant decisions that clarified the law. The Board issued its first decision 

concerning agency authority to run—and OPM authority to approve—personnel demonstration projects, which are experiments in which normally applicable laws, rules, and 

regulations may be waived to determine whether a change in personnel management 

policies or procedures would result in improvements to the civil service system. The 

majority of the important decisions during the year, however, revisited such areas of the 

law as the Whistleblower Protection Act (WPA), the Family and Medical Leave Act of 

1993 (FMLA), the requirements associated with interim relief, several aspects of 

adverse actions (including the Board's penalty-review authority as well as questions of 

proof of both the procedural and substantive propriety of certain types of charges), the 

affirmative defense of discrimination based on a disabling condition (including proof of a 

disability and the accommodation of disabled employees), and the bona fides of 

reduction-in-force actions. 

Issues of First Impression 

Exploring new territory, the Board considered the propriety of a reduction in force 

that had been run by an agency in connection with a personnel demonstration project. 

Although authority for OPM to conduct personnel demonstration projects was 

established by the Civil Service Reform Act of 1978, the matter had not previously come 

before the Board in any substantive way. In Kohfield & Porter v. Department of the Navy, 

75 M.S.P.R. 1 (1997), the Board discussed the statutory scheme under which such 

projects are authorized, noting that OPM may waive regulations to facilitate them. In this 

instance, it waived application of the RIF regulations, and the Board found that it was 

authorized to do so. In its rulings, the Board also examined 5 U.S.C. § 7702 and held 

that it is not part of the body of discrimination law precluded from waiver in a 

demonstration project under 5 U.S.C. Chapter 47. 

Additionally, the Board made new law in two areas with respect to remedies. 

First, in Forrest v. Department of Agriculture, 74 M.S.P.R. 213 (1997), the Board ruled 

that an appellant's right to a status quo ante remedy in a non-mixed case does not 

entitle him to reimbursement for leave he used to consult with his representative about 

his Board appeal. In a mixed case, though, he is entitled to reimbursement for such 

leave, in a reasonable amount, as compensatory damages under Title VII, which allows 

for more than a return to the status quo ante, if he made a nonfrivolous allegation of 

discrimination in connection with the appealed action. 

In Currier v. USPS, 72 M.S.P.R. 191 (1996), also noting that the remedy of 

compensatory damages available under the 1991 Civil Rights Act is broader than just 

returning the appellant to the status quo ante, the Board held that such a situation 

provides an exception to the general rule that rescission of an action and restoration of 

the appellant to the status quo ante moots an appeal. Because an appeal once within 

the Board's jurisdiction cannot be mooted unless the appellant has received all of the 

possible relief he requested, a mixed case in which a claim for compensatory damages 

has been made is not mooted simply by the rescission of the underlying agency action. 

The Board also held, as a result, that in cases where a nonfrivolous discrimination 

allegation has been raised, but with no accompanying claim for compensatory 

damages, MSPB administrative judges must afford the appellant a specific 

opportunity to make such a claim before dismissing the appeal as moot.
Adverse Actions 

Procedural, Substantive, and Penalty Issues 

Perhaps the Board's most significant action occurred when it reconsidered its 

own penalty-review authority. In White v. USPS, 71 M.S.P.R. 521 (1996), the Board 

announced a new rule concerning its scope of review of agency penalty determinations. 

The Board noted that immediately after the issuance of its landmark decision on 

penalty-setting standards, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), 

it applied a standard giving "careful consideration" to cases in which fewer than all of 

the charges were sustained, but that in time this standard had been eroded, and the 

more recent practice was to allow or impose the "maximum" reasonable penalty. In 

White, the Board held that where only some of the agency's charges are sustained, it 

will itself independently select what it determines to be "a reasonable penalty." Further, 

in contrast to its earlier position that statements by deciding officials, as to the penalties 

they would have imposed if only some of the charges had been sustained, were irrelevant, the Board ruled that it may consider such statements, if they are credible, 

although it will not necessarily defer to them. 

Following up on White, in Payne v. USPS, 72 M.S.P.R. 646 (1996), the Board 

limited its ruling to those cases in which not all of the charges are sustained. In cases 

where all of the charges but only some of the specifications are sustained, the agency's 

penalty determination is still entitled to deference, and the Board will mitigate "only to 

the extent necessary to bring [the penalty] within the parameters of reasonableness, 

i.e., a maximum reasonable penalty standard should be applied." Payne at 651. 

Also of great importance to agency penalty-setting decisions is the Board's 

decision in Vaughn v. USPS, 75 M.S.P.R. 25 (1997), which examined the extent of the 

parties' rights and obligations where the Board mitigatesa removal to a demotion to the 

next-lower graded nonsupervisory position. The Board ruled that agencies need not 

create positions to accommodate such demotions and that an appellant is not entitled 

to pay at a higher grade level than that of the position in which he was placed upon 

mitigation. Back pay must be computed at the level of the highest grade nonsupervisory 

position for which the appellant was qualified or could have become qualified without 

undue interruption and that was available during the period between the removal and 

the Board's final decision. 

In Shelley v. Department of the Treasury, 75 M.S.P.R. 677 (1997), the Board 

rejected the frequently-advanced agency claim that because of an appellant's many 

years of service, she "should have known better," so that her failure to conform her 

conduct accordingly aggravated the penalty. The Board held instead that lengthy 

service is a factor that supports leniency. 

On the subject of attendance-based charges, the Board revisited the relatively 

new rights and responsibilities arising from the FMLA. In Ellshoff v. Department ofthe 

Interior, 76 M.S.P.R. 54 (1997), the Board ruled that where the facts implicate the 

FMLA, it will consider and apply the law without shifting the burden of proof to the 

appellant. The decision in Ramey v. USPS, 70 M.S.P.R. 463, was modified accordingly. 

When certain FMLA requirements were examined, the Board held that under thenapplicable interim regulations an employee need not explicitly invoke the law in 

requesting leave, and that failure to satisfy the requirements of a leave restriction letter 

does not, without more, warrant denial of FMLA leave. Further, in Crutchfield v. 

Department of the Navy, 73 M.S.P.R. 444 (1997), the Board found that the FMLA does 

not augment an employee's leave balance; rather, it entitles him or her to approved 

leave for certain purposes and gives the option of using accrued paid annual and sick 
leave or LWOP. The Board noted that under the final regulations an employee must 

invoke a right to FMLA leave at the time it is needed, and cannot do so retroactively. 

Addressing the important subject of workplace violence, the Board clarified and 

applied the law as to threats in several ways, by building on the lesson of Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), and the Board's own earlier 

case law developed under Metz. In McCarty v. Navy, 72 M.S.P.R. 201 (1996), distinguishing a facially similar decision reaching the opposite result, the Board ruled that 

although the office atmosphere was one of panic and confusion following the appellant's threatening statements, ultimately, that reaction was due to those statements, 

co-workers' prior dealings with him, and their knowledge of his reputation, and not to 

the actions of management in responding to his statements. Under the circumstances, 

the charge of threatening conduct was sustained and mitigation was not warranted. In 

Powell v. Department of Justice, 73 M.S.P.R. 29 (1997), the Board considered a 

recurring factual situation, where an employee contacting an Employee Assistance 

Program (EAP) counselor makes or repeats a threat. The Board held that seeking such 

help shows that the employee is interested in talking out his frustrations rather than 

acting on them, and it noted that many agency programs advertised themselves as 

confidential. The Board therefore held in this case that it would be contrary to the policy 

and purposes of EAP to find that a threat was made during an EAP session. In 

Greenough v. Department of the Army, 73 M.S.P.R. 648 (1997), the Board drew a 

significant distinction by deciding that whether an employee intends to carry out a threat 

is irrelevant to whether he intends to make one. 

In the adverse action area, the Board also revisited the vexing subject of 

labeling of charges. In Otero v. USPS, 73 M.S.P.R. 198 (1997), the Board construed 

Burroughs v. Department of the Army, 918 F.2d 170 (Fed. Cir. 1990), and held that an 

agency need not label its charges. Although it must not label the charge in terms that 

are not supported by the proof, it need not use a label that has narrow terms with legal 

elements. The appellant's due process and fairness concerns are satisfied where the 

narrative is sufficiently specific despite the broad label attached to it. In Hawkins v. 

Smithsonian Institution, 73 M.S.P.R. 397 (1997), and Crouse v. Department of the 

Treasury & OPM, 75 M.S.P.R. 57 (1997), the Board discussed the significance of the 

wording and structure of the letter of charges and whether the Board may look behind 

that wording and the language of the decision to define a charge. 

Disability Discrimination 

The Board's decision in Clark v. USPS, 74 M.S.P.R. 552 (1997), made several 

significant rulings, consistent with the law as set forth and applied by the Equal 

Employment Opportunity Commission. The Board distinguished between direct and 

indirect evidence of disability discrimination and set forth the burdens of proof 

applicable to each. It also decided that in determining whether an appellant is 

substantially limited in a major life activity, the major life activity of working should be 

examined last, and ruled that where the appellant shows he could be accommodated 

within his job, the Board should not reach the issue of whether he could be reassigned. 

In its decision in Stevens v. Department of the Army, 73 M.S.P.R. 619 (1997), the proof 

required to show that a disability is a "substantial impairment" was set forth. 

The Board also reexamined agencies' accommodation obligation to alcoholic 

employees under the ADA's amendments to the Rehabilitation Act. Clarifying its 

position in Kimble v. Department of the Navy, 70 M.S.P.R. 617 (1996), the Board found 

that leave for treatment of an alcoholic may remain a required accommodation only 

where the employee requests it before he has committed the misconduct that violates 

the standards under which the agency uniformly imposes discipline. In a related ruling, 
the Board held that although agency regulations on accommodation may derive from 

the anti-discrimination laws, a claim of the violation of such a regulation properly 

constitutes one of harmful error rather than discrimination. For a case finding a 

violation of an agency's obligation to accommodate, see Humphrey v. Department of 

the Army, MSPB Docket No. DE-0752-96-0465-I-1 (Sept. 26, 1997). 

Reduction in Force 

With the increasing need to trim work forces as a result of smaller budgets and 

changes in agency authority come more RIF actions, and accordingly, more claims that 

a RIF is not bona fide, but rather an improperly effected adverse action. Thus, it was of 

great importance when the Board decided, in Cook & Shank v. Department of the 

Interior, 74 M.S.P.R. 454 (1997), that an agency does not act prematurely when it 

separates an employee despite a continuing resolution then funding the agency. The 

Board held that an agency does not have to wait until it runs out of funds before 

effecting a RIF to stave off a deficit situation. Another precedential interpretation on the 

subject came in Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 

476 (1997). There, the Board rejected the argument that a RIF should be found not 

bona fide if the appellant's behavior or performance was a substantial or motivating 

factor in the decision to implement the RIF. As long as the agency had legitimate 

reasons to abolish positions, the action is bona fide even though the affected 

employees had performance or conduct problems. Also in the RIF area, the Board 

issued several more decisions concerning the Postal Service's obligations in running its 

compliance RIF, intended to ameliorate certain effects of its 1992-93 restructuringbased demotion actions. 

Whistleblower Protection Act 

Once again in fiscal year 1997, the Board addressed many claims advanced 

under the WPA. In Wojcicki v. Department of the Air Force, 72 M.S.P.R. 628 (1996), the 

Board found, among other things, that even disclosures concerning matters that are 

applicable to only the appellant and a limited number of his co-workers may be protected. In Sazinski v. Department of Housing and Urban Development, 73 M.S.P.R. 682 

(1997), the Board ruled that the revelation of a negligible, remote, or ill-defined peril that 

does not involve any particular person, place, or thing is not protected as a substantial 

and specific danger to public health or safety. Additional issues involving the WPA were 

decided in Special Counsel cases (discussed below). 

Retirement Issues 

The Board also issued many decisions concerning the rights of employees, 

retirees, and various other applicants for retirement benefits, exploring the intricacies of 

the provisions of the retirement statutes applicable in numerous situations. In one such 

decision, Finch v. Office of Personnel Management, 72 M.S.P.R. 221 (1996), the Board 

found that it was appropriate, under the rules of statutory construction, to defer to 

OPM's reasonable interpretation of the retirement law concerning designation of 

beneficiaries of lump sum retirement contributions, because Congress gave 

OPM the authority to issue regulations to effectuate the law. Here, the Board deferred 

to OPM, finding that it was constrained to do so, although this meant that the deceased 

Federal employee's request could not be honored. In that regard, the Board noted that 

it is up to OPM to change the regulation implementing the law, or to Congress to 

change the law itself. 
Interim Relief 

The Board made two significant announcements in its decisions to modify or 

clarify the law relating to interim relief In Moscato v. Department of Education, 72 

M.S.P.R. 266 (1996), the Board announced that it will no longer automatically dismiss 

an agency's PFR where it has, in good faith, inadvertently exceeded the requirements 

of an interim relief order. In Costin v. Department of Health and Human Services & 

OPM, 72 M.S.P.R. 525 (1996), the Board ruled that it may award interim relief to prevailing appellants in IRA appeals. Equally important were the Board's decisions in 

Buckler v. Federal RetirementThrift Investment Board, 73 M.S.P.R. 476 (1997), ruling 

that it may not examine an undue disruption determination under its authority to enforce 

final orders, or as a violation of the merit system principles, or in its authority to issue 

protective orders, and O'Regan v. Department ofVeterans Affairs, 74 M.S.P.R. 134 

(1997), finding that in the context of providing interim relief, an agency may not reargue 

the issue of the appellant's qualifications for a job where they were directly at issue in 

the underlying IRA appeal. 

Original Jurisdiction Cases 

Again in fiscal year 1997, the Board's original jurisdiction cases gave it the 

opportunity to study several important aspects of the various laws governing these 

cases. 

Actions Against Administrative Law Judges 

In Social Security Administration v. Mills Butler, 73 M.S.P.R. 463 (1996), the 

Board established the rule that good cause to remove an administrative law judge may 

be found even in the absence of misconduct on the part of the judge. Here, the Board 

ruled that long-term absence resulting from a disability, with no realistic chance of the 

judge returning to duty, along with the agency's need to fill the position, support a 

finding of good cause under 5 U.S.C. § 7521. Good cause is a question of fact, to be 

decided on a case-by-case basis. 

A ruling that is significant with respect to actions against administrative law 

judges was made in Special Counsel v. Eubanks, MSPB Docket No. CB-1215-94- 

0018-T-1 (Sept. 19, 1997). The Board remanded that Special Counsel case to the ALJ 

who heard it, stating that consideration on remand would proceed under the appropriate administrative supervision of the Board's Chief ALJ. In issuing this ruling, the 

Board noted the statutory proscription against interfering with an ALJ's decisional 

independence and held that the Chief ALJ may not interfere with that independence in 

making the actual fact findings, credibility determinations, and conclusions of law, but 

may provide "appropriate administrative supervision" in terms of support staff and 

making editorial suggestions. 

Another significant ALJ-related ruling is found in White v. Social Security 

Administration, MSPB Docket Nos. CB-7521-97-0038-T-1 and AT-1221-97-0433-W1 

(Sept. 23, 1997), dealing with a judge's authority to impose sanctions against an ALJ 

as necessary to serve the ends of justice. The Board concluded that where the ALJ 

failed to respond to several orders to address jurisdictional and other issues, imposition 

of the sanction of dismissal was within the decision maker's discretion. 

Special Counsel Actions 

In Special Counsel v. Eubanks (discussed above), the Board established that its 

holding in Spithaler v. OPM, 1 M.S.P.R. 587 (1980), concerning the analysis of factual 

issues necessary to sustain Board review, applies to both appellate and original 
jurisdiction cases. Where such standards are not met, the matter must be remanded to 

the judge who heard it. 

In Special Counsel v. Alexander, 71 M.S.P.R 636 (1996), the Board found that 

the Hatch Act is violated where a covered employee engages in activity prohibited by 

the Act, whether he does so knowingly and willfully or not; intent is relevant only to the 

penalty. The Board stated that removal is warranted where the violation occurred under 

circumstances indicating that the employee deliberately disregarded the law. It also 

determined here that Federal payments to state activities made in the form of 

reimbursements constitute funding by "grants or loans" and that employees whose 

work is funded in this manner fall within the Act's coverage. 

In Special Counsel v. Spears, 75 M.S.P.R. 639 (1997), the Board addressed 

anonymous disclosures, deciding that the requirement that, to come within the scope of 

5 U.S.C. § 2302(b)(8) it must be shown that a person in the position of the person 

making the disclosure would have a reasonable belief in its protected character, 

applies even to such cases. The Board further decided that a whistleblower need not 

fully investigate the facts surrounding a disclosure in order to give it protection. 

In Special Counsel v. Department of Transportation, 71 M.S.P.R. 661 (1996), 

the Board ruled that it may order cancellation of a removal action taken subsequent to 

a reassignment that it found to be a prohibited personnel practice (PPP), even without 

deciding whether the removal, alone, would constitute a PPP, if there is a sufficient 

relationship between that PPP and the later adverse action. 

The Board's significant decision in Special Counsel v. Costello & Strehle and 

Special Counsel ex rel. McClintock & Steen v. Department of Veterans Affairs, 75 

M.S.P.R. 562 (1997), addressed both disciplinary actions and corrective actions 

brought by the Special Counsel. Addressing the burden of proof, the decision in these 

cases held that the Special Counsel is not required to prove an actual abuse of 

authority or regulatory violation to prevail in a disciplinary action complaint, but that the 

Special Counsel's initial burden is much higher than in a corrective action case. The 

Board also noted that it applies its appellate jurisdiction standards to penalty 

determinations in such cases. While noting that return to the status quo ante is the 

remedy usually ordered as corrective action for violation of 5 U.S.C. § 2302(b)(8), 

under the unique facts of this case—where the employee's ability to perform his former 

job is unclear and the office in which he worked is now closed—the Board modified the 

usual remedy to require that he be allowed to select his new job location from current 

vacancies in his former position. (NOTE: This decision was subsequently appealed to 

the U.S. Court of Appeals for the Federal Circuit.) 

Regulation Review 

In National Treasury Employees Union v. OPM, MSPB Docket No. CB-1205-97-

0030-U-I (Aug. 21, 1997), the Board granted NTEU's request that it review 5 C.F.R. § 

351.504(6), providing that service credit in RIFs is to be based on recent performance 

ratings. Based on its careful analysis, the Board ruled that the performance-based 

additional service credit provision of section 351.504(b) is not a prohibited personnel 

practice under 5 U.S.C. § 2302(b)(11), and is not invalid. 

In numerous cases, the Board found that petitioners failed to meet the strict 

statutory requirements for granting a request for regulation review. One request, Public 

Safety Service Employees Union v. OPM, 76 M.S.P.R. 162 (1997), addressed a 

request for review of the alleged invalid implementation of OMB Circular A-76 by 

theTennessee Valley Authority. The Board dismissed the petition, finding that it did not 

cite any rules or regulations promulgated by OPM. Rather, the Circular was a directive 
prepared by OMB and is therefore not a matter within the jurisdiction of the Board's 

regulation review authority. 

The breakdown of original jurisdiction cases by case type, and the disposition of 

those cases, is shown in the accompanying table. 

Improvements in Adjudictory Procedures 

During FY 1997, the Board purchased and installed video conferencing 

equipment in its five regional offices. The offices used this equipment to conduct 18 

hearings and 1 status conference during the remainder of the fiscal year. Video 

conferencing has proven to be a cost-saver (travel and court reporting costs) and a 

time-saver (travel), especially for the administrative judges, who carry a heavy travel 

burden. The parties and other participants in cases also benefited from video 

conferencing by avoiding travel time and costs. In one instance, video conferencing 

equipment was used for testimony by a witness in prison, thus avoiding the expense of 

having U.S. Marshals transfer and accompany the witness to the hearing. In addition to 

the use of video conferencing equipment in an instance such as this, it may be used as 

well for testimony by witnesses located overseas when the hearing is being held in the 

United States. As this technology is applied to a much greater extent, there should be a 

significant positive effect on case processing productivity in the regional offices, as well 

as significant cost savings for both MSPB and the Federal Government as a whole. 

The Board also implemented a Petition for Review (PFR) Form as a pilot project 

during the fiscal year. For many years, the Board has made available an optional 

Appeal Form to assist appellants in providing the information needed by administrative 

judges to decide their appeals. There was no comparable form, however, for filing a 

petition for review of a judge's decision. The new form is designed to assist the filing 

party in providing the information needed for the Board's adjudication of a PFR. Since 

May 1, 1997, the regional and field offices have distributed the new PFR Form with 

each initial decision. Through the end of the fiscal year, 30 percent of all PFRs filed 

were on the new form. The Board plans to assess this pilot project during FY 1998. 

The Board's PFR Settlement Program achieved a 23 percent rate of success in 

appeals where settlement was attempted at the headquarters review level—up from 21 

percent during the previous fiscal year. Considering that settlement had already been 

attempted at the regional or field office level in nearly all of those cases, and that an 

administrative judge had issued an initial decision favoring one party or the other, the 

Board's customers and observers were often surprised to learn of this significant rate of 

success. In addition, the settlement efforts themselves—whether successful or not—

furthered the interests of alternative dispute resolution and customer service. Agency 

representatives, appellants' representatives, and pro se appellants often expressed 

their gratification with the settlement process as a vehicle to promote better 

understanding of both the adjudicatory process and the law as applied to their cases. 
Original Jurisdiction Cases Decided by MSPB in FY 1997 

Case Type No. Disposition 

OSC Corrective Actions 6 Corrective action ordered — 2 

No corrective action ordered — 1

Settled — 3 

Petition for Enforcement * 2 Dismissed 

OPM Request for Reopening 1 Denied 

OSC Disciplinary Actions — Non-Hatch 

A t

4 Disciplinary action ordered — 1 

No disciplinary action ordered — 2

Remanded to ALJ — 1 

OSC Disciplinary Actions — Hatch Act: 

Federal/DC 2 Dismissed — 1 

Settled — 1

State/Local 3 Ordered Federal funds withheld — 

Dismissed — 2 

OSC Stay Requests: 

Initial Requests 4 Granted 

Requests for Extension of Stay 11 Granted 

Special Counsel Motion for Termination of 

Stay

1 Granted 

Petition for Enforcement 1 Dismissed 

Agency Motion for Termination of Stay 1 Dismissed 

Actions Against ALJs 10 Action authorized — 2 

Dismissed — 5

Settled — 3 

Requests for Regulation Review 54 Denied — 51 

Dismissed — 3

SES Performance-based Removals

(Hearing only — No Board decision) 0 

TOTAL 100 
Changes in Adjudicatory Regulations 

The Board's procedures for both appellate and original jurisdiction cases are set 

forth in the Code of Federal Regulations at 5 CFR Parts 1201, 1203, and 1209. 

During the fiscal year, the Board made several amendments to its procedural 

regulations to implement provsions of new laws, incorporate new precedential Board 

rulings, and further streamline its adjudicatory operations. Those amendments are: 

• Publication of a new Subpart H to 5 CFR Part 1201 to prescribe procedures for the 

Board's consideration of requests for attorney fees, consequential damages, and 

compensatory damages. This new subpart combined the Board's existing attorney 

fee regulations with new provisions implementing the attorney fee and consequential 

damages provisions of the 1994 law reauthorizing the Board and the Office of 

Special Counsel, the attorney fee provision of USERRA, and the compensatory 

damages provision of the Civil Rights Act of 1991. The amendment also made 

additional changes to both Part 1201 and Part 1209 to implement other provisions of 

the 1994 reauthorization law. 62 Fed. Reg. 17041, April 9, 1997. 

• Amendment to 5 CFR Part 1201 to incorporate the Board's ruling in Moscato v. 

Department of Education, 72 M.S.P.R. 266 (1996), that it will no longer automatically 

dismiss an agency's PFR where it has, in good faith, inadvertently exceeded the 

requirements of an interim relief order. 62 Fed. Reg. 43631, August 15, 1997. 

• Revision of Subpart D to 5 CFR Part 1201 to streamline the procedures for 

adjudication of original jurisdiction cases. Under the revised procedures, initial 

decisions—rather than recommended decisions—are issued in Special Counsel 

corrective and disciplinary actions and in actions against administrative law judges. 

These decisions are subject to a petition for review by the Board, but if no PFR is 

filed, they become final in the same way that initial decisions issued in appellate 

jurisdiction cases do. The revised procedures continue to require that Special 

Counsel disciplinary actions and actions against administrative law judges be 

adjudicated by an administrative law judge (normally the Board's Chief ALJ) . Special 

Counsel corrective actions and requests for informal hearings in SES performancebased removal cases, however, may be assigned to any MSPB judge. The revised 

procedures also provide that the Chief ALJ may decide initial Special Counsel stay 

requests under authority delegated by individual Board members. 62 Fed Reg. 48449, 

September 16, 1997. 

• Amendment to 5 CFR Part 1201 to prescribe how a Federal employee witness in a 

Board proceeding may obtain an order that the employing agency grant him or her 

official time for participation in the proceeding. This amendment also clarifies that the 

Board's procedures for enforcement proceedings in Subpart F to Part 1201 apply to 

orders issued in the course of MSPB adjudicatory proceedings, such as an order that 

official time be provided a witness or an order protecting a witness or other individual 

from harassment. 62 Fed. Reg. 48935, September 18, 1997. 
Although not published until after the end of FY 1997, three additional amendments 

to the Board's procedural regulations should be noted here. They are: 

• Amendment to both 5 CFR Part 1201 and Part 1209 to revise the time limits for 

filing initial appeals (including whistleblower appeals and mixed case appeals), 

PFRs, and requests to review an arbitrator's award. All of the changes in this amendment are intended to ensure that an appellant has a full 30 days (60 days in the case 

of a whistleblower's IRA appeal) to file with the Board after the event from which the 

filing time begins to run. 62 Fed. Reg. 59991, November 6, 1997. 

• Amendment to 5 CFR Part 1201 to clarify the authority of MSPB judges to exclude a 

party or representative from all or any portion of a Board proceeding for 

contumacious misconduct or misbehavior that obstructs a hearing. 62 Fed. Reg. 

62689, November 25, 1997. 

• Amendment to 5 CFR Part 1201 to prescribe procedures for the processing of cases 

brought under the Uniformed Services Employment and Reemployment Rights Act 

(Public Law 103-353). 62 Fed. Reg. 66813, December 22, 1997. 

Access to MSPB Adjudicatory Procedures and Decisions 

Additional information on the Board's procedures is available in its publications, An 

Introduction to the MSPB, Questions & Answers About Appeals, and Questions & Answers About Whistleblower Appeals, which were updated in September 1997. 

Final Board decisions are published by commercial publishers, including West 

Publishing Company (United States Merit Systems Protection Board Reporter), Labor 

Relations Press (Federal Merit Systems Reporter), and Information Handling Services 

(PERSONNET). All citations to Board decisions in this report are to the West's 

publication. 

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

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

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

Office's Federal Bulletin Board. The bulletin board can be accessed by computer 

modem at 202-512-1387. Assistance is available from GPO by calling 202-512-1530. 

Certain significant Board decisions are also available on the OPM Main-street BBS, 

202-606-4800. 

Litigation 

Judicial Review and Litigation 

With two exceptions, final Board decisions in both appellate and original 

jurisdiction cases are subject to judicial review by the United States Court of Appeals 

for the Federal Circuit. The exceptions are: 

• Decisions in mixed cases involving allegations of discrimination, which may be 

appealed to an appropriate U.S. district court; and 

• Decisions in Hatch Act cases involving State or local government employees, which 

may be appealed to an appropriate U.S. district court. 

The Director of OPM may petition the Board for reconsideration of a final 

decision, and may also seek judicial review of a final Board decision that the Director 

determines will have a substantial impact on a civil service law, rule, regulation, or 

policy. 
During FY 1997, the U.S. Court of Appeals for the Federal Circuit issued 

decisions on review of 444 Board decisions, and 96 percent of those decisions were unchanged. The Board actively litigated 133 of these cases. 

The Whistleblower Protection Act of 1989 granted the Board litigating 

authority to defend its appellate decisions except where the merits of the underlying 

personnel decision or a request for attorney fees is at issue. (The Act modified a 

Federal Circuit order issued in 1987 that eliminated the Board as a respondent in 

appeals from cases that the Board had dismissed for lack of jurisdiction or 

timeliness and attorney fee decisions.) Other litigation in which the Board is named as 

respondent arises primarily from civil actions appealing decisions issued under the 

Board's original jurisdiction authority. The Board also is a respondent in all cases in 

which the Director of OPM seeks judicial review of a Board decision. 

Other active litigation includes discrimination cases filed in the various Federal 

district courts—when the Board is a defendant; cases in which the Board intervenes; 

cases where Board employees are sued in their personal capacities for actions taken by 

them within the scope of their employment; and administrative litigation arising out of 

appeals to MSPB filed by the Board's own employees. 

The Office of the General Counsel also monitors cases involving appeals from 

decisions issued by the Board under its appellate jurisdiction. The agency is the named 

respondent in these cases and is defended by the Department of Justice. Board 

activities in connection with monitored litigation include responding to inquiries from the 

parties or the court, informing the Board of significant cases scheduled for 

argument or decision by the court, and preparing summaries of published 

decisions. During FY 1997, attorneys in the Office of the General Counsel monitored 

610 cases, including both new filings with the court and cases carried over from the 

previous year. 

JUDICIAL REVIEW* OF MSPB DECISIONS, FY 1993 - 1997 PERCENT OF 

MSPB DECISIONS UNCHANGED**

Federal Circuit Decisions 

* Final MSPB decisions may be appealed to the U.S. Court of Appeals for the Federal Circuit. 

** Dismissed or Affirmed 
Case Summaries 

The following are summaries of significant decisions by the Federal Circuit on 

review of Board decisions during the fiscal year: 

Cooper v. Department of the Navy, 108 F.3d 324 (Fed. Cir. 1997) 

This case involved the application of 5 U.S.C. § 7701(j), which provides that, in 

determining the appealability of a removal, the Board may not take into account the 

individual's status under a retirement system. The agency removed the appellant for 

inability to perform his duties, and he appealed his removal to the Board. While the 

appeal was pending, the appellant applied for and received disability retirement benefits, 

and the agency then rescinded the removal, deleting all references to it from his official 

personnel file and substituting a separation due to retirement. Because the removal was 

rescinded, the Board's administrative judge dismissed the appeal as moot in a decision 

which became final after the Board denied review. 

On appeal, the court affirmed, ruling that the cancellation of the removal and 

its expungement from the appellant's record eliminated all consequences of the action. 

The court acknowledged its decision in Mays v. Department of Transportation, 27 

F.3d 1577 (Fed. Cir. 1994), finding that section 7701(j) was intended to permit an 

employee eligible to retire at the time of his removal to take a retirement annuity 

without forfeiting the right to challenge the removal. However, it found that this case 

was distinguishable from Mays because here the employee's removal was 

rescinded and could not be the subject of an appeal. The Board did not need to 

consider the appellant's retirement status to find that his appeal was moot. This 

result, the court added, does not prevent theemployee who believes he was effectively 

removed by being improperly coerced into retiring from challenging the retirement as 

involuntary. 

Torres v. Office of Personnel Management, No. 963367 (Fed. Cir. Sept. 12, 1997) 

In this case, the court examined the statutory criteria for immediate or "early 

out" retirement annuities under 5 U.S.C. § 8336(d)(2). OPM argued that section 

8336 gave it broad power to impose time restrictions with respect to who could 

receive the "early out" benefit and thus limited it to employees who had been on the 

agency rolls for 30 days prior to the time the employing agency requested early out 

authority from OPM. The court found that the language of the statute was clear, 

that it did not provide for the type of restriction devised by OPM, and that OPM lacked 

authority to impose any eligibility requirements beyond those set out by Congress. 

According to the court, the only duties delegated to OPM by the statute are to 

determine where the geographic limits of the offer for early retirement shall extend and 

whether a "major" personnel action is occurring. If an employee is in an agency 

undergoing a major reduction in force, as decided by OPM, in a particular geographic 

area determined by OPM, and meets the government service and age requirements 

listed in the statute, the employee is entitled to the "early out" retirement annuity. 

Because the appellant here met all the statutory requirements, the court found that it was 

improper to deny him early retirement and so reversed the Board's contrary determination. 
Fox v. Office of Personnel Management, 100 E3d 141 (Fed. Cir. 1996) 

In this case, the court considered whether a clause in a divorce settlement 

agreement met the requirement of the Spouse Equity Act to expressly provide for a Civil 

Service Retirement System (CSRS) survivor annuity benefit for a former spouse. The 

court held that in interpreting the terms of any divorce decree or property settlement 

incident to that decree, if the terms can fairly be read as awarding a CSRS survivor 

annuity, it is appropriate to consider extrinsic evidence of the marriage parties' intent and 

the circumstances surrounding the execution of the document. Because the Court found 

that the clause at issue here could be read as awarding a survivor annuity, it held that the 

Board erred in failing to give weight to extrinsic evidence of the parties' intent, which 

evidence demonstrated that the meaning of the clause entitled "survivors benefit plan" 

meant a CSRS survivor annuity. 

Natiolski v. Merit Systems Protection Board, 105 E3d 642 (Fed. Cir. 1997) 

In this case, the court agreed with the Board that an agency does not violate the 

interim relief provision at 5 U.S.C. § 7701(6) (2) by reassigning an employee. The court 

held that an agency may reassign an employee as interim relief provided that the agency 

determines that returning the employee to the original position would unduly disrupt the 

work environment, and the agency pays the employee all the pay and benefits of the 

original position. The court affirmed that the Board need not examine an agency's 

compliance with an interim relief order if the Board finds that the administrative judge 

improvidently awarded interim relief. The court confirmed the Board's authority to waive 

any of its own regulations upon a finding of good cause and notice to the parties. 

Pope v. USPS, No. 96-3290 (Fed. Cir. June 5, 1997) In this case, the court clarified 

the parties' evidentiary burdens where an employee is charged with actions of a sexual 

nature that created a hostile work environment for another employee. The court held that it 

was appropriate to apply a double presumption to such misconduct. Once the agency 

established that the petitioner's actions towards another employee were of a sexual 

nature, there was a presumption that such conduct created a hostile work environment 

and a second presumption that the hostile work environment harmed the efficiency of the 

service. The petitioner may rebut either presumption by producing evidence that his or 

her actions did not create a hostile work environment or did not harm the efficiency of 

the service. The court remanded the appeal to allow the petitioner an opportunity to rebut 

the presumption that his actions created a hostile work environment. 

Petitions of Certiorari 

The Supreme Court granted the petition for certiorari in King v. Erickson, and King 

v. McManus, 1117 S.Ct. 2506 (June 27, 1997), on the issue of whether the due process 

clause prohibits Federal agencies from sanctioning employees for making false 

statements about their involvement in employment-related misconduct. In the decisions 

under review, the Federal Circuit had found that an agency may not charge an employee 

with falsification, or a similar charge, on the basis of the employee's denial of another 

charge or the underlying facts relating to that other charge. The Justice Department's 

brief to the Supreme Court argues that the Federal Circuit's decision creates a broad 

constitutional right to lie for Federal employees suspected of employment-related 

misconduct, that the Supreme Court has consistently rejected such a right, and that the 

due process clause does not support the Federal Circuit's rulings. The Court heard 

argument on December 2, 1997. 
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. 

Studies 

The Statutory Studies Function 

The CSRA assigned the Board, in addition to its adjudicatory functions, responsibility 

for reviewing the significant actions of OPM and for conducting studies of the civil 

service and other merit systems in the Executive Branch. The studies function 

complements the Board's adjudicatory activities by reviewing Federal human resources 

management policies and practices on a systemic basis. The Board is uniquely situated 

to provide neutral, independent, and non-partisan reviews and assessments as part of 

the ongoing effort to develop and maintain an effective and efficient civil service. 

The Board typically solicits potential study topics from a wide variety of sources in 

developing its OPM oversight and studies agenda. The Board's studies are usually 

governmentwide in scope, and are conducted through a variety of evaluation methods, 

including mail and telephone surveys, on-site systems reviews, written interrogatories to 

agencies, formal discussions with subject-matter experts, computer-based data 

analysis, and reviews of secondary source materials. 

The Board's reports on the results of its studies are addressed to the President and 

the Congress, as required by law, and also are made available to a large secondary 

audience of Federal agency officials, employee and public interest groups, labor 

unions, academicians, and other individuals and organizations with an interest in public 

personnel administration. 

Summaries of Reports Issued in FY 1997 

Achieving a Representative Federal Workforce: Addressing the Barriers to 

Hispanic Participation (September 1997). This report presents the results of the Board's 

study of the degree to which Federal agencies have met the statutory goal of a work 

force representative of all segments of society and the reasons for the continued 

underrepresentation of Hispanics in the Federal work force. Hispanics remain the only 

minority group whose aggregate representation in the Federal work force is less than that 

in the civilian labor force (5.9 percent versus 10.2 percent). Among the specific findings 

are: 

• Efforts to reach full Hispanic representation in the Federal work force are hampered by 

the fact that 65 percent of white managers and 49 percent of Hispanic managers do 

not believe that Hispanics are underrepresented in their work units. Further, only 35 

percent of white managers (and 63 percent of Hispanic managers) believe they 

should be held accountable for work force diversity. 

• Despite well-documented gains made by minorities in expanding their 

representation in the Federal work force, racial and ethnic discrimination still affect 

job opportunities for minorities to some degree. 

• Because of a combination of several powerful demographic realities, even the total 

elimination of discrimination from the Federal work force would not alone result in 

achievement of full Hispanic representation. Among the reasons are: 

• The geographic distribution of Federal jobs is at odds with the distribution of the 

Hispanic population. While 54 percent of Hispanics live in California and Texas, only 

16 percent of Federal jobs are located in these states. 
• There are some occupational and educational barriers that make it more difficult to 

find highly-qualified Hispanics. Over half (53 percent) of all Federal jobs are in 

professional and administrative occupations, yet nearly 60 percent of Hispanics in the 

U.S. civilian labor force are employed in blue-collar jobs, and only 9.2 percent of 

Hispanics have attained a 4-year college degree or higher. 

• Over a third (35 percent) of Hispanics in the U.S. civilian labor force are not citizens 

and, thus, are effectively barred from Federal employment. 

The Board concludes that in addition to continued efforts to eliminate any 

vestiges of discrimination that may still exist, Federal agencies need to address the demographic obstacles that hinder efforts to increase Hispanic representation in the 

Federal work force. This must be done in a manner consistent with a merit-based civil 

service and should include: (1) a strategic plan for more effective recruitment of wellqualified Hispanics; (2) ensuring managers are accurately informed about the degree of 

Hispanic representation in the work force and each manager's responsibility in this 

regard; and (3) possibly devoting a greater proportion of resources devoted to minority 

recruitment efforts to the goal of hiring well-qualified Hispanic men and women. 

Adherence to the Merit Principles in the Workplace: Federal Employees' Views 

(September 1997). This report presents the results of a study that examines the extent 

to which employees of Executive Branch departments and agencies believe their 

organizations are adhering to the requirements of the statutory merit system principles. 

The centerpiece of this study was a survey administered to over 9,700 Federal 

employees who were asked about the extent to which their agencies were meeting the 

goals defined by the merit system principles. The following are among the specific 

findings in the report: 

• Almost one-third of employees believed their agencies regularly fail to uphold the 

merit principles when promoting people, by basing promotions on something other 

than candidates' relative ability, knowledge, and skills. 

• About one-fifth of the survey respondents thought their agencies have a major 

problem in hiring new employees based on merit, after fair and open competition. 

• One-fifth of respondents felt their agencies regularly fail to make well-qualified 

selections when hiring new employees from outside their agencies. 

• Some 44 percent felt their agencies regularly do a poor job of correcting inadequate 

performance of their coworkers. Nonsupervisory and supervisory employees' views were 

almost identical on this issue. 

• Just over half (51 percent) said their agencies do not fire people who cannot or will not 

improve their performance. Even more supervisors felt this way than nonsupervisory 

employees. 

• Almost one-fifth of respondents thought their agencies regularly fail to protect 

employees against arbitrary personnel actions, and some 15 percent believed their 

agencies regularly fail to protect employees against reprisals for whistleblowing. 

• Only 8 percent saw a major problem in regard to whether agencies are able to protect 

employees from being coerced to participate in partisan political activities. 

• Thirty-eight percent of respondents thought their agencies had only minor problems 

or no problem in protecting employees from discrimination in personnel 

management matters. Some 22 percent said this was a recurring problem in their 

agencies, and 20 percent said it was a moderate problem. 
The Board concludes that many Federal employees are not convinced that their 

organizations are consistently upholding the values embodied by the merit principles. 

To improve this situation, the Board recommends that: (1) every Federal department and 

agency examine its own personnel practices and programs, emphasizing the bottom-line 

results inherent in the merit principles; (2) with help from OPM, Federal departments and 

agencies should incorporate into their management training programs practical guidance 

for managers on what they must do to implement the merit system principles effectively; 

and (3) departments and agencies need to develop meaningful, cost-effective oversight 

and accountability systems for ensuring that the work environment is free from prohibited 

personnel practices. 

Other FY 1997 Activities 

Issues of Merit 

In fiscal year 1997, the Board continued to actively disseminate its study findings, 

conclusions, and recommendations through the periodic publication of its "Issues of 

Merit" newsletter. This publication is directed to Federal policy makers, the human 

resources community, and others interested in Federal human resources management 

issues. Among FY 1997 features were: 

• A discussion of the quality of new hires, noting that although Federal employees are 

generally positive about the quality of their coworkers, in the Board's 1996 merit 

principles survey, Federal managers rated job applicants lower than they had in 

previous years. Even in the midst of downsizing, the Government needs to pay 

special attention to work force quality and how it is achieved. 

• A discussion of the need for Federal managers to maintain balance between their 

desire to quickly fill vacancies and their need to find high quality candidates, 

highlighting the fact that the quickest way to bring a new hire on board does not 

always result in hiring a superior candidate. 

• Survey results showing that Federal supervisors and managers believe that 

downsizing in administrative and support functions has been accompanied by a 

degradation in the quantity and quality of human resources management support 

available to managers. 

• An analysis of "delayering" efforts finding that: (1) although the Government has been 

successful in cutting the number of organizational layers and increasing the average 

span of control, these changes are not seen by many former supervisors as 

achieving the desired improvements in individual and work unit performance; and 

(2) for a sizable portion of employees in the survey sample, a change in status from 

supervisor to nonsupervisor has not resulted in a change in the duties they 

perform. 

• A report on supervisors' views of third-party agencies (Equal Employment 

Opportunity Commission, Merit Systems Protection Board, Office of Personnel 

Management, and the Federal Labor Relations Authority) revealing varying levels 

of satisfaction with how these agencies handle employee complaints and appeals. 
• Views from Federal employees who serve on "standing panels" for MSPB by 

responding to short, periodic surveys on items of interest, including: (1) supervisors' apprehensions about taking on additional human resources management 

responsibilities; (2) the ways in which supervisors are held accountable and which 

ones they believe are most effective; (3) competencies supervisors believe they 

need in order to effectively carry out their human resources management 

responsibilities; and (4) supervisors' views (and criticisms) on the quality of human 

resources services they receive from their personnel offices. 

Studies in Progress 

Substantial work was completed in FY 1997 on: (1) an omnibus report on the 

results of the 1996 Merit Principles Survey; and (2) a study concerning the effectiveness 

of OPM oversight of Federal agencies' human resources management programs. 

Additionally, data gathering was completed on a study of the changing role of Federal 

supervisors in Federal human resources management and whether they are ready for 

those changes. A study was also begun that will assess the significant activities of OPM 

during the almost 20 years since the passage of the Civil Service Reform Act. The Board 

also initiated studies of delegated personnel examining authorities and the Interagency 

Career Transition Assistance Program (ICTAP). 

Agency Outreach 

The Board worked collaboratively with other Federal agencies to fulfill its mission 

in FY 1997, while being careful to maintain its objectivity and non-partisanship. Agencies 

frequently request information or advice regarding implementation of the merit system 

principles or eradication of prohibited personnel practices. The Board's study of sexual 

harassment for the Department of Justice (funded by that department) was completed 

early in the fiscal year. The Board prepared a report based on the study results, and the 

Attorney General distributed it to all components within the department. In her 

memorandum accompanying the report, the Attorney General advised all managers 

and employees that eliminating sexual harassment in the workplace was one of her 

highest priorities for the Justice Department. The department proceeded to develop 

strategies, based on the study results, for dealing with the problem of sexual 

harassment. 

During FY 1997, the Board also provided advice and assistance to several 

agencies, including the Department of Agriculture and the Department of 

Commerce, who were interested in surveying their own work force regarding issues 

and concerns raised by an earlier Board report on minority employment in the Federal 

Government. Additionally, the Board provided advice and assistance to numerous 

agency representatives calling with specific questions and data requests after the 

release of the report, "Adherence to the Merit Principles." The Board also provided staff 

to collaborate with an inter-agency team to design an organizational change survey 

for the National Performance Review as part of their ongoing efforts to improve 

operations throughout all Federal agencies. 

Studies-Related Technological and Procedural Improvements 

During FY 1997, the Board applied emerging technologies to its studies 

program and initiated a number of procedural improvements. Among the 

accomplishments in this area are the following: 

• The Internet is being used to make Board study reports more readily available to 

Federal policymakers, agency decisionmakers, and the general public. The "Issues 

of Merit" newsletter and reports are now readily available for downloading from the 
MSPB web site, as well as from some commercial sites. This not only makes the 

information more immediately and more broadly available, but the hundreds of 

downloads of the newsletter and reports—which are the most frequently 

downloaded items from the Board's web site—represent significant savings in 

distribution costs. 

• All members of the studies staff now have highspeed access to the Internet and 

are able to use it to identify key work force issues more efficiently and to obtain or 

verify information useful in its merit system studies. Increasingly, the Internet is 

becoming a real-time window on the policies and human resources management 

initiatives of Federal agencies. Reports from OPM, GAO, NPR and other 

sources are readily downloaded and made immediately available for use by the 

studies staff. 

• The studies staff is increasingly using its access to OPM's Central Personnel 

Data File (CPDF) to answer questions about the composition of the Federal work 

force and the number and types of personnel actions (e.g., hires, separations, 

adverse actions) affecting the work force. This direct access to the CPDF allows the 

staff to quickly test hypotheses and answer questions related to the studies program. 

• To augment previously established "standing panels" of Federal managers and 

human resource management specialists, a panel of approximately 540 union 

representatives was established during FY 1997. While these panels are not 

representative of the Government as a whole, short surveys of panel members 

permit timely feedback and informed opinions about a variety of pressing 

issues related to the management of the Federal work force. For example, in a 

collaborative effort with the National Academy of Public Administration, the Board 

surveyed two of the panels to obtain information about the competency requirements 

of human resources management specialists and about the preparedness of Federal 

managers to assume more responsibility for delegated human resources 

management functions. More recently, surveys of managers and union 

representatives provided important new insights into the extent to which agency 

partnerships have influenced the working relationships between first-line 

supervisors and union representatives. 
Administration 

Government Performance and Results Act 

In accordance with the requirements of the Government Performance and Results 

Act (GPRA), the Board delivered the MSPB strategic plan to the Office of Management 

and Budget (OMB) and the Congress on September 30, 1997. The plan was the product 

of extensive consultation over the last two years with the Congress, OMB, and the MSPB's 

stakeholders, including agency representatives, union representatives, members of the 

private bar who represent appellants before the Board, and academicians and others 

interested in the Board's studies. The consultations included two focus group meetings 

with representatives of stakeholders in May of 1997. The strategic plan describes the 

Board's plans for the next five years under the broad goals of protecting and promoting 

the Federal merit systems through fair, timely, and efficient dispute resolution and timely 

and relevant reviews of Federal human resources management systems, programs, 

policies, and initiatives, including reviews of the significant actions of OPM. 

In September 1997, the Board also delivered its first annual performance plan, 

covering fiscal year 1999. The performance plan lays out the agency's objectives and 

specific performance measures for that fiscal year. The performance measures for the 

dispute resolution goal include: the percentage of final Board decisions left unchanged 

upon review by the courts, the average case processing time for initial decisions and 

petitions for review, the average processing cost, and indications that costs are being 

saved by the greater use of an alternative dispute resolution process by individual 

Federal agencies. The performance measures for the studies and reviews goalinclude: 

indicators that the Board's research has examined relevant issues, indicators that 

Federal policy makers have found the information the Board produces to be useful, 

indicators that the Board's recommendations are useful, and indicators that the Board 

provides a unique perspective on the issues studied. 

These plans will be discussed during the next year as the FY 1999 appropriation 

request is considered and acted on by OMB, the President, and the Congress. 

Staff Reductions and Use of Temporary Appointments 

In an effort to operate within existing budgetary constraints, and in anticipation of 

additional reductions in appropriations in future fiscal years, the Board determined during 

FY 1997 that it was necessary to reduce its staff. To accomplish the needed reduction, 

the Board first offered early out retirement with a buyout opportunity to all support staff. 

Eight employees retired under that offer. Because further reductions were needed, the 

Board conducted a RIF of headquarters support staff that was effective October 1, 

1997. The RIF resulted in the abolishment of 15 positions; 5 employees retired or found 

employment with other agencies, and 10 employees were separated. With other attrition, 

the Board reduced its staff by a total of 39 employees during FY 1997. 

The Board's adjudication workload has not fallen even though overall Federal 

employment levels have been reduced about 15 percent in the last four years. The 

steps taken to reduce support staff enabled the Board to hire additional administrative 

judges with temporary appointments to assist in adjudicating the appeals being received. 

Depending on future workload and funding levels, the Board may extend these 

temporary appointments. During FY 1997 only one headquarters attorney was 

transferred to a regional office. Other vacancies were filled by outside hires from the 

local regional and field office cities. 
Technology and Procedural Improvements 

MSPB continued to make technological and procedural improvements during the 

fiscal year. In addition to the installation of video conferencing equipment (discussed 

in the "Adjudication" section of this report), notable improvements included the 

following: 

• Implementation of the Wide Area Network (WAN) in the regional and field offices 

was completed, allowing those offices access to the Local Area Network (LAN) at 

headquarters. This facilitates the exchange of information and documents, and 

provides every employee access to documents such as final decisions, research 

reports, administrative information, and CD-ROM publications. 

• The conversion of offices from the DOS version of Microsoft Word to the Windows 

version was completed, allowing for easier transfer of information among offices. 

• The agency extended voice mail to all of the regional and field offices so that 

callers can leave messages even when no one is available to answer the telephone, 

such as in the evening and on weekends. 

• All offices were given access to the Internet so that information from other agencies 

as well as outside sources can be accessed more easily and quickly. 

• Additional tape recording equipment was provided for the administrative judges 

so that it is easier to record pre-hearing conferences and hearings. This has 

resulted in savings in court reporting costs. 

• More information on final Board decisions and reports on studies is now available to 

the public through continuing enhancements to the MSPB World Wide Web site. The 

MSPB web site is accessed, on average, over 5,600 times monthly. User sessions, 

which include activities such as browsing or downloading files, average about 1,870 

monthly. 

To help meet the Board's workload challenges, headquarters and the regional 

and field offices are continuing to work together to identify and plan for the increased 

application of computer technology. One regional office has instituted an electronic 

filing system to permit appellants to file electronically. The Board is continuing to 

explore the feasibility of converting its paper-intensive file system into an electronic 

system. Factors affecting any such Board decision will include demonstrated efficiencies in time and cost involved in tracking, filing, duplicating, and mailing case files, 

preservation of the integrity of the case filing system, and the ability to design and 

implement a system that is user-friendly for both litigants and Board personnel and 

which contributes to quality and expeditious case adjudication. 
Financial Statement 

The income and expenses for the Merit Systems Protection Board for fiscal year 

1997 (October 1, 1996, through September 30, 1997) are shown below. All figures are 

in thousands of dollars. 

INCOME 

Appropriations 23,923

Civil Service Retirement & Disability Trust Fund 2,430

Other reimbursements 22

Total income 26,375

EXPENSES 

Direct obligations: 

Personnel compensation 

Full-time permanent 14,724

Other than full-time permanent 1,018

Other personnel compensation 23

Subtotal, personnel compensation 15,765

Personnel benefits 2,779

Benefits — former employees 345

Travel of persons 298

Transportation of things 56

Rental payment to GSA 1,884

Communications, utilities, and miscellaneous 535

Printing and reproduction 94

Other services 1,338

Supplies and materials 172

Equipment 603

Subtotal, direct obligations 23,869

Reimbursable obligations 2,452

Total obligations 26,321

BALANCE 54
For Additional Information 

MSPB's World Wide Web site contains information about the Board and its 

functions, as well as copies of decisions, reports, and publications. Complete copies of 

decisions from July 1, 1994, are available for downloading, as are copies of the weekly 

Case Summaries and recent reports and studies. The address of the Board's Web site 

is http://www.mspb.gov. 

The MSPB Library on the Federal Bulletin Board can be accessed by computer 

modem at 202-512-1387 seven days a week. User assistance is available from 

GPOfrom 8 AM to 4 PM Eastern time, Monday through Friday, by calling 202-512-1530. 

The Bulletin Board can also be accessed via the Board's Web site. 

The Board's toll-free telephone number is 

1-800-209-8960. 

Comments or questions regarding MSPB, the bulletin board, or the Web site may be 

sent to the Board's e-mail address, mspb@mspb.gov. 
Customer Service Standards 

The Merit Systems Protection Board has two core missions: (1) Adjudication of 

appeals brought to it under the provisions of law and regulation, and (2) Oversight of the 

Federal merit systems. These two missions are authorized in the Civil Service Reform 

Act of 1978. 

We have established these standards to assure our customers that they receive the 

quality of service to which they are entitled and to assure the public as a whole that we 

are ably promoting and protecting the Federal merit systems. 

MISSION I — Adjudication of Appeals 

1. We will make our regulations easy to understand and our procedures easy to follow.

2. We will process appeals in a fair, objective manner, according respect and courtesy 

to all parties.

3. We will promptly and courteously respond to customer inquiries.

4. We will facilitate the settlement of appeals.

5. We will issue readable decisions based on consistent interpretation and application 

of law and regulation.

6. We will issue decisions in initial appeals within 120 days of receipt and within 110 

days on petitions for review, except where full and fair adjudication of an appeal 

requires a longer period.

7. We will make our decisions readily available to our customers.

MISSION II — Oversight of the Federal Merit Systems and the U.S. Office of 

Personnel Management 

1. We will conduct research on topics and issues relevant to the effective operation of 

the Federal merit systems and the significant actions of the U.S. Office of Personnel 

Management; perform sound, objective analysis; and where warranted, develop 

practical recommendations for improvement.

2. We will issue timely, readable reports on the findings and recommendations of our 

research and make these reports available to all interested individuals and parties.

3. We will enhance the constructive impact of our studies and reports through outreach 

efforts.

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

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

concerning our service, we invite you to provide feedback to our Chairman, Mr. Ben 

Erdreich, through the Clerk of the Board, at 1120 Vermont Avenue, NW., 

Washington, DC 20419, telephone (202) 6537200, FAX number (202) 653-7130. 

Electronic mail may be sent over the Internet to mspb@mspb.gov.