0 

United States 

Merit Systems Protection Board 
The U.S. Merit Systems Protection 

Herbert E. Ellingwood

Maria L. Johnson

Dennis M. Devan

Letter of Transmittal 

MERIT SYSTEMS PROTECTION BOARD 

Washington, D.C. 20419 

The Chairman 

Sirs: 

In accordance with Section 202(a) of the Civil Service 

Reform Act of 1978(5 U.S.C. Sec. 1209 (b)), it is my honor to 

submit the Seventh Annual Report of the Merit Systems 

Protection Board. This Report covers the activities of the 

Board for Calendar Year 1985. 

The President of the United States The President of the Senate The Speaker of the House of Representatives 

Washington, D.C. 
CONTENTS 

 1. Introduction ................................................................................................................... II. The Board Members ...................................................................................................... III. Organization of the Board ............................................................................................. Organization Chart ........................................................................................................ IV. Summary of 1985 ......................................................................................................................

V. The Adjudicatory Framework .......................................................................................

 A. Appellate Jurisdiction Cases .................................................................................... B. Original Jurisdiction Cases ....................................................................................... 1. Actions Against Administrative Law Judges ............................................................ 2. Disciplinary Actions Initiated by the Office of Special Counsel .............................. a. Non-Hatch Act Disciplinary Actions ........................................................................ b. Hatch Act Disciplinary Actions ................................................................................

 C. Compliance .........................................................................................................

 D. Requests for Reconsideration by the Office of Personnel Management .................. E. Mixed Cases (involving allegations of discrimination) ............................................ F. Regulation Review .................................................................................................... VI. Litigation Activity ......................................................................................................... VII. Reports of the Office of Merit Systems Review and Studies ........................................

 A. Significant Actions of OPM during 1984 

B. Study of MSPB Appeals Decisions for FY 1983 C. Study of MSPB Appeals Decisions for FY 1984 
Introduction 

The U.S. Merit Systems Protection Board was created pursuant to Reorganization Plan No. 2 of 1978 and the Civ1978. An independent judicial agency, the Board is a bipartisan, three-member panel appointed by the Presideguardianship of the Federal merit systems. This mandate is implemented by: • Adjudicating in a fair and impartial manner actions brought by the Special Counsel and employee appeals; • Conducting special studies of the merit systems to determine whether they are free from prohibited personnel prac• Analyzing and reporting on the significant activities of the Office of Personnel Management (OPM); and • Reviewing the regulations issued by OPM to determine whether they require the commission of prohibited personTo assure the Board's independence in the performance of its functions, Congress provided that: • Board members be appointed to nonrenewable 7-year terms and be removed only under extraordinary circumstanc• the Board simultaneously submit budgets and legislative proposals to Congress and the President, thus elimi

approval by the Office of Management and Budget (OMB); 

• the Board be granted independent appointment authority; and • the Board be granted authority to defend its decisions in the Federal courts, except the Supreme Court. 

The Board consists of 11 trial-level regional offices and an appellate forum at Headquarters in Washington, D.C. T

approximately 350 employees and a $20 million budget. Since its inception, the Board has decided over 72,500 appereview. Board decisions have withstood the scrutiny of the U.S. Court of Appeals for the Federal Circuit in over 93% 
THE Board 

II. BOARD MEMBERS 

The Board's three members are appointed by the President with the advice and consent of the Senate; the designat

approved by the Senate. 

HERBERT E. ELLINGWOOD was appointed by President Reagan to be tDecember 14, 1981. At the time of his appointment, Mr. Ellingwood was servithe President. Prior to his White House position, he was in private law practice & Toms in Sacramento, California. From 1975 to 1979, Mr. Ellingwood was Special Assistant Attorney General for California and was Legal Affairs Secretary to Governor Reagan from 1969 to 1974. 

MARIA L. JOHNSON was nominated to the Board by President Reagan on March 18, 1983. She was confirmed by the Senate on May 6, and was designated Vice-Chair on September 19, 1983. At the time of her appointment, Ms. Johnson was a commercial loan officer with the Security National Bank in Anchorage, Alaska. From 1978 to 1981, she was an Associate Attorney with the firm of Lambert, Griffin & McGovern in Washington, DC. 

DENNIS M. DEVANEY was nonminated by President Reagan to be Member of 1982, and confirmed by the Senate on August 20. At the time of his appointment, private law practice in Washington, D.C. with the firm of Tighe, Curhan, and Pilihe served as Counsel for the Food Marketing Insitute, and from 1975 to 1977, waCounsel for the U.S. Brewers Association.
Organization 

III. ORGANIZATION OF THE BOARD The Merit Systems Protection Board has offices in Washington and around the country. The Chairman, as Chief Execu

responsible for its operations. 

The Managing Director has the authority for the day-to-day management of the Board as delegated by the Chairman. The Assistant Managing Director for Management plans and coordinates improvements to the overall management oThe Assistant Managing Director for Regional Operations coordinates procedures and reviews the quality of the adjuoffices. The Office of General Counsel, legal counsel to the Board, represents the Board in court actions, handles compliance a

proposed final decisions for the Board in original jurisdiction cases. 

The Office of Appeals Counsel drafts proposed decisions for the Board based on petitions for review of initial decision

jurisdiction cases, and on cases reopened by the Board. 

The Office of Legislative Counsel represents the agency before Congress, the media and the public. The Office of Administrative Law judges adjudicates cases within the Board's original jurisdiction, including propose

against administrative law judges (ALJs) and disciplinary actions filed by the Office of Special Counsel for violations o

Activities Act or for the commission of prohibited personnel practices by supervisors. This office also has jurisdiction odiscovery and motions for subpoenas filed in the regional offices. The Office of Merit Systems Review and Studies reviews and reports its findings on government personnel policies ancompliance with merit system principles.
The Office of the Clerk processes petitions to the Board and distributes Board opinions and orders. The Clerk also rules 

relating to adjudication and makes initial determinations on Freedom of Information and Privacy Act requests. The Office of the Comptroller directs and coordinates the administrative services and financial functions of the Board. The Office of Personnel manages internal personnel programs and provides assistance to managers, employees, and appThe Office of Equal Employment develops and monitors equal employment opportunity programs and policies. The Special Counsel The Office of Special Counsel (OSC) is an independent agency that investigates allegations of prohibited personnel practices and activities prohibited by civil service laws, rules and regulations. The OSC may prosecute before the Board the officials who are alleged to be in violation of those rules and regulations. Because the Special Counsel is required by 5 U.S.C. 1206(m) to submit an annual report to Congress, this report will not address Special Counsel activities except as they pertain to Board decisions.
Organization 

IV. SUMMARY OF 1985 

1985 was a year in which the Board continued to improve and refine agency operations that established th

model judicial agency. 

Space Reduction -- In response to President Reagan's request for space reduction in the Federal sector, the Board 

reducing over 18% of office space in 1985 towards its goal of a 27% reduction. 

Realignment -- Based on an analysis of the appeals workload and support capabilities, the Board realigned severa

1985. The result was an even distribution of case receipts to staff, tighter control of resources, and increased proce

Integrated Information Program -- In 1985, the Board converted its computer and word processing systems to a

tegrated information system. This new system combines word processing, data processing, case tracking, and telec

provides current information on appeals. 

Training -- The Board established an inhouse faculty to train attorneys in significant and complex are

reduction-in-force actions and constitutional issues pertaining to personnel law; credibility determinations; prehearing management. The Board held writing skills seminars for attorneys and other professionals. 

Administrative staff trained in records management in accordance with National Archives and Records Adm

the end of 1985, these employees trained in electronic spread sheets (LOTUS 1-2-3), a too] for funds managemen

Hewlett-Packard staff instructed employees in the new word processing system. In addition, the Board pro

specialized training in data-base maintenance, programming, and systems management and operations. 

Litigation Case Tracking Automation -- During 1985, the Board's computer staff designed and implemented 

tracking cases litigated by the Office of General Counsel in Federal court. 

Conversations in the Law -- The Board invited a wide range of notable speakers to talk about issues of interest to Among the speakers were: The Honorable Edward Markey, Chief Judge, U.S. Court of Appeals for the Federal Cir

Barbara Mahone, then Chairman, Federal Relations Authority; Rosemary M. Collyer, General Counsel, National LJoseph Ross, President, Federal Bar Association. 
Internal Audit Evaluation Program -- The Board, under the auspices of the Assistant Managing Director for Region

comprehensive audit/evaluation reviews of seven regional offices. The remaining offices will be evaluated in 1986. Tthe quality of presiding official's decision-writing and indentification of common administrative matters such as schereview procedures which could be improved or shared with other offices. Board staff also audited each office fo

management and contract administration. In addition, the Office of Personnel surveyed position management and grade s

Atuomated Budget and Payroll -- The Board computerized its payroll, personnel and accounting functions in conju

Finance Center in New Orleans. 

The Office of the Clerk -- The Board reorganized the Office of the Clerk into two divisions: Case Management and Infoaddition, the clerk's office retired 16,000 files while remaining timely in processing new cases and implemented records National Archives and Records Administration. 
Adjudicatory Framework 

V. THE ADJUDICATORY FRAMEWORK 

Adjudicating appeals is the major function of the Board. Appeals are filed in one of the Board's eleven regional 

the appeals were processed within the Board's 120-day self-imposed time limit. An alternative to the standard pro

pedited Appeals Procedure (VEAP), a streamlined method that reduces processing time by half and is used in 

cases. 

Decisions issued by the regions become final after 35 days. During that time either party, the Office of Perso

Special Counsel may petition the Board to review the initial decision. The Board may also review the decision on i

Decisions of the Board's Administrative Law Judges in original jurisdiction cases (i.e., cases not involving appeals recommended decisions to the full Board. Unlike initial decisions, recommended decisions do not become final anthe full Board. A summary of some of the most significant decisions issued by the Board in 1985 follows. A. Appellate Jurisdiction 

Most cases before the Board Members stem from requests by an appellant or an agency in the form 

of petitions for review of a presiding official's decision. The petitions must be based on specific legal grounds, not mere disagreement with the regional office decision. Some of the significant appellate cases decided by the Board are discussed below: 

Anderson v. State, DC04328310838 (4/24/85). Klippert v. DCAA, SF04328310269 (4/24/85). 

Board held that ex parte communications to agency deciding officials are subject to the harmful error standard. Such communications will not be considered reversible error unless they contravene a statutory or regulatory right and likely had a harmful effect on the outcome before the agency. 

Hall v. U.S. Postal Service, DA07528210720, (1/25/85). Board held that preference eligibles in the Postal Service have the right to appeal to the Board as well as the right to invoke grievance procedures. Darby v. U.S. Postal Service, SF07528210771 (12/31/84). Board held that where credibility determinations directly affect the outcome of a case, substitution of presiding official after hearing is improper. 
Cortes v. Interior, SF04328310327 (1/9/85). Board 

held that performance-based removal action based on duties performed while on detail to a higher-graded position was contrary to the provisions of law. Coleman v. DOT, NY075281F042COMP (4/5/85). Board held that a subsequent performancebased removal of an employee who had been restored previously by a Board decision was unreasonable because the agency failed to provide sufficient training to enable the employee a fair opportunity to be recertified in his former position. Thomas v. GSA, PH07528310635 (4/29/85). Board held that the doctrine of collateral estoppel was applicable to specifications contained in a removal action where those identical specifications were considered by the Board in a prior suspension action. The doctrine of collateral estoppel recognizes that the determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings against each other. Abbott v. U.S. Postal Service, CH07528410586 (5/9/85). Board held that in deciding whether an interrogatory is unduly burdensome, the benefit to the party seeking information must be balanced against the burden placed upon the opposing party. Kelmon v. Justice, SF075228411070 (5/29/85). Board held that it has authority to review the propriety of wits discretion or was otherwise unreasonable in denying an employee advance sick leave. Brooks v. U.S. Postal Service, DA03538310346 (1/23/85). The Board held that the right to restoration af

those employees who have been subjected to a compensable injury.

Ferby and Jackson v. U.S. Postal Service, AT07528211068 (2/14/85). The Board determined that emplochance agreements with agencies. In those agreements, the employee waives any potential appeal rights employee violate the agreement. 
Robinson v. OPM, DE831M84

held that it had the authority to dealing with the amount and waiZoltawski v. Army, CH043284found that an acceptable perforconclusion of an employeeprecluded the agency from prperformance action without pperiod. Cofield v. GPO, DC075281Board held that it was authorizagency to comply with Board deWithers V. Air Force, DE0353Board held that a partially recosame entitlements to nationwide recovered employee unless the hardship. Egan v. Navy, SF07528310257 it lacks jurisdiction to revierevocation of employee's secureview record to ensure that mbeen afforded to the employee re

In Re Alfred Maisto, SF07528411054 COMP (8/6/85). Board determined that a Federal employee who is a witness at a Board proceeding is entitled to be placed in an official duty status and paid for time spent traveling to and at the hearing. 

Thomas v. VA, BNO75283C9053 (8/22/85). Board concluded that it may not award interest on back pay under the Back Pay Act or the Veterans Preference Act. Lizut v. Army, PH07528110266ADD (6/3/85). Board held that the Back Pay Act and certain implementing regulations apply to judicial review of Board decisions and provide authority for the Board to award attorney fees incurred during such review. Colgan v. Navy, SF04328510016 (6/19/85). Board held that, by law, a minimally satisfactory performance rating may not trigger remedial performance action by the agency. 

4A
Brown v. Army, PH04328310568 (8/21/85). Board refined its 

seminal decision in Griffin. Board concluded that agency regulations that contain no alterations and state that the agency's performance appraisal plan has been approved by OPM constitutes sufficient evidence to establish OPM approval. Cross v. Air Force, BN04328310121 (12/18/84). Board held that the statutory requirement of communication of performance standards and elements is a substantive right and that employees have the right to be made aware of them at the beginning of the appraisal period. Walker v. Treasury, DC04328510014 (7/5/85). Board held that the agency abused its discretion in establishing a performance standard that required near perfection absent a showing that the standard was "realistic or reasonably attainable." Lance v. Energy, DE531DO8410085 (1/3/85). Board held that the opportunity to demonstrate acceptable performance is not a substantive right applicable in a within-grade increase denial action. Haataja v. Labor, CH03518210565 (1/7/85). Board held that an agency is required to show that its determination of service credit provided for performance during a RIF consistent procedures applied by the agency. Hill v. Commerce, DC03518210663 (12/11/85). Board held that only violations of RIF regulations that affect su

an employee are reversible. 

Noe v. USPS, SF07528411002 (6/17/85). Board held that an allegation of alcoholism raised in reply to the noaction is timely and must be considered by the agency before taking action. Johnson v. Labor, DC03518210559 (2/14/85). Board held that an employee's first informed choice to proceed wpeal after the effective date of the action constitutes an election under 5 U.S.C. § 7121(d). 
Briggie 

v. DHHS, NY04328210249 (3/29/85). Board held that absent an allegation that the agency's choice of a particular chapter 43 remedy constitutes a prohibited personnel practice, the Board has no authority to determine whether that choice constitutes disparate treatment. 

Rogers v. U.S. Customs Service, NY07528510111 (April 24, 1985) (initial decision). Rogers, a criminal investigator for the Customs Service, was removed for charges that he hindered a criminal trial involving alleged IRA activities. He was accused of making unauthorized disclosures that allegedly jeopardized both lives and methods of intelligence collection by the British and Irish governments. In the initial decision, only one of the three charges was sustained and the penalty was mitigated to a 30-day suspension. The parties did not petition the full Board for review and the initial decision became final. 
B. Original jurisdiction 

Cases under the Board's original jurisdiction include complaints 

against administrative law judges (ALJs) by their employing agency and actions brought by the Office of Special Counsel for violations of the Hatch Political Activities Act and for commission of prohibited personnel practices by supervisors. 1. Actions Against ALJs 

Administrative law judges have qualified independence designed 

to assure the integrity of administrative adjudications. 5 U.S.C. § 7521 bars employing agencies from taking certain actions against the judges without first obtaining Board permission. The Board issued 

several decisions concerning ALJs, the most significant of which are discussed below. 

Social Security Administration v. Brennan, MSPB Docket No. HQ7521810010 (4/15/85). In Brennan, the BoaGoodman that an ALJ may be removed for poor performance. The Board found that: the agency failed to 

Brennan that he was being charged with insubordination; Brennan failed to support his defense that the adm

affected his qualified judicial independence or enjoyed Constitutional protection; and the agency failed to establmemorandum sent Ao the Administrative Law Judge in Charge affected the limited supervisory relationship Judge Brennan. Based on the single proven charge of disruption of the office, the Board authorized imposition of In The Matter of Robert F. Doyle, HQ0752185100011, (9/25/85). Board held that while there were no reprocedure for an ALJ to institute an action under 5 U.S.C. § 7521, it has adopted a policy of allowing such a proccomplaining ALJ. Social Security Administration v. Goodman, HQ75218210015ADD (6/21/85). Board found that attorney prevailing administrative law judges in original jurisdiction cases, although in this case none were warranted in t

2. Special Counsel Initiated Actions 

The majority of cases heard by the Board under its original jurisdiction authority are actions brought by the Special 

a. Non-Hatch Act Disciplinary Actions 

The Board's jurisdiction over non-Hatch A disciplinary actions is triggered by the filing of a complaint by the Spe

commission of a prohibited personnel practices or an activity prohibited by civil service law, rule or regulation. Duriseveral decisions that defined the Office of Special Counsel's jurisdiction. The most significant decisions are discusse
Special Counsel v. Starrett, Evans and Tueller, MSPB Docket No. HQ12068310022 (6/13/85). The Spec

whistleblower had been retaliated against by Starrett, the agency head, and Evans and Tueller, two senior offic

tract Audit Agency of the Department of Defense. The Board ruled that protected disclosures had been a signific

to take a personnel action against the whistleblower and ordered Starrett removed and Evans and Tueller demotewas not a defense that the charged employee believed the disclosures made by the whistleblower were false. 

Special CounseDocket No. HQThe Board held the investigatoauthority to seagainst an emplostandards of coC.F.R. Part 735Counsel's poweaffirmative defarbitrarily or capsection 1206(e)(2the Special Coucharges can be mresolved by the than in a disciplinSpecial Counsel MSPB Docket (12/7/84). The Sdiscipline Filibepersonnel officiaapplicant for emp

applicant. The Board ordered Filiberti and Dysthe suspended. The Board rejected contentions that the Special Coprecondition for filing a disciplinary action, to comply with corrective action procedural requirements of 5 U.providing the employing agency with an opportunity to investigate and act upon the allegations. 

Special Counsel v. Russell, MSPB Docket No. HQ12068410016 (6/26/85). In a decision on an interlocutory appeal, tC.F.R. ~ 1613.11(a), an EEOC regulation prohibiting sexual harassment, was not within the Special Counsel's 1206(e)(1)(D) to investigate 11 activities prohibited by civil service law, rule or regulation" because EEOC regulatregulations. The Board also determined that an alleged violation of 5 U.S.C. § 2302(b)(1)(A), prohibiting discrim

taking or failing to take a personnel action; that allegations of sexual harrassment state a potential violation of sec

that sexual assault against a female employee may be sexual harassment. 
b. Hatch Act Disciplinary Actions 

The Special Counsel also enforces the Hatch Political Activities Act, which prohibits Federal, st

engaging in partisan political activities. The Special Counsel is authorized to investigate allegatioprosecute those persons it finds in violation by fling a complaint for disciplinary action with the Boar

Special Counsel v. Seastrunk, MSPB Docket No. HQ12068510004 (6/12/85). The Board foviolated the Hatch Act (5 U.S.C. § 7524(a)) by his candidacy in a partisan election and was ocontended that he had run as an Independent in a local election and that state law made the non-partisanship by virtue of state law was rebutted because the two candidates opposinDemocrats. 5 U.S.C. § 7526(l) requires at least that none of the candidates represent the partisan political parties. Special Counsel v. Suso, MSPB Docket No. HQ1206820017 (3/22/85). The Board found that Semployee of a state or local agency covered by the Hatch Act (5. U.S.C. § 1501(4)) and that s

candidate in a partisan election contrary to 5 U.S.C. § 1502(a)(3). The Board found Suso

because the question of whether a regional planning and development organization like the onthe Hatch Act was a matter of first impression. Under the provision of the Hatch Act applicable to state and local employees, if removal is not warranted, no penalty attaches to a violation. 

C. Compliance 

In Kerr v. National Endowment for the Arts, 726 

F.2d 730 (Fed. Cir. 1984), the U.S. Court of Appeals for the Federal Circuit extended the Board's jurisdiction in compliance matters. Kerr held that the Board's jurisdiction did not end with an employee's reinstatement after an appeal, but rather the Board had jurisdiction to consider the particulars of an employee's claim that his reinstatement was a "sbam." As a result, the Board issued several significant decisions concerning agency compliance with Board decisions. - ~ -1 
Mann v. Veterans Administra

NY07528510034 COMP (11final Board order to cancsubstitute a 60-day suspensioto her former position and imanother position, to which shreassigned. Finding noncomorder, the Board held that, wreinstated to his or her foposition still exists at classification levels, the ageoverriding interest for not plaformer position, and the VA an interest. Cofield v. Government PrintiNo. DC07528110599COMP held that because the Public the President with the advSenate, the Board could not for noncompliance with a Board consequently dismissenforcement and referred tCounsel for consideration. 

Miller and Hayes v. Department of the Air Force, MSPB Docket No. DA07528090220COMP (5/29/85). Following a Botheir removal, the appellants were reinstated. Upon reinstatement, however, Miller was reassigned as Warehouse Woodworker; Hayes was reassigned as a Warehouse Worker and later as a Material Expeditor. The Board held that it wareassignments to determine whether the subsequent positions differed substantially in the scope and status of their duties 

Board ordered the agency to reinstate Miller and Hayes to their former positions and to award them the difference in pay t

if they had been reinstated in accordance with the Board's original order. 

Frazier v. United States Postal Service, MSPB Docket No. NY07528210641COMP (3/1/85). Appellant's removal was can

suspension as a result of a prearbitration settlement. The Board ordered the Postal Service to award Frazier back pay for the suspension to the actual date of his reinstatement. The Board granted the award in the interest of placing appellant in 

pursuant to section 436 of the Postal Service Employee and Labor Relations Manual. 

20 
Smith v. Department of Justice,MSPB Docket No. AT07528410931 COMP (8/27/85). The Board held that its obligati

pellant's return as nearly as possible to his former position requires a two-fold inquiry: (1) whether appellant was returformerly occupied, and (2) if not, to ascertain why the agency did not return appellant to that position. Because Smith different location, the Board evaluated the agency's reasons for not returning him to the same position. The Board held Smith might retaliate against his superiors and that trust in Smith would be eroded were not valid reasons for not retur

from which he was removed. 

Cortez v. Veterans Administration, MSPB Docket No. DA07528210750 COMP (5/28/85). Cortez's settlement agreemwas adopted by the Board and made a part of the record, provided that he would receive a lump-sum award of back 

the money he had withdrawn from his retirement plan through periodic payments. The VA claimed it could not agreement to allow repayment of retirement contributions in installments. The VA offset his back pay by the retireme

on an opinion of the General Accounting Office provided at the Board's request, the Board held that the agreement wpayments of the retirement contributions were permissible in this case and ordered the VA to comply with the agreement. 

Special Counsel v. Filiberti and Dysthe, MSPB Docket No. HQ12068310018COMP (5/29/85). When the Board founto escape serving the suspension the Board ordered for commission of a prohibited personnel practice, the Board authority extended to preventing Filiberti from escaping the penalty by retiring. The Board ordered the employing Filiberti's accrued annual leave payment an amount equal to the salary Filiberti would have forfeited had he served the Special Counsel v. Filiberti and Dysthe, MSPB Docket No. HQ12068310018COMP (12/20/85). The Board issued a 

Military Sealift Command, Filiberti's and Dysthe's employing agency, to answer why it should not be sanctioned for information when requesting the Board to modify its suspension order to permit Dysthe to serve his suspension before granted the modification. The Board was concerned that MSC had withheld material information that would have l

modification. After a hearing before the Board's administrative law judge, the Board adopted the recommendati

warranted because the information not made known to the Board was not material and would not have affected modification. 

Tripodi v. Drug Enforcement Ad' ministration, MSPB Docket No. PH 0752B8120160COMP (12/16/85) The Board fo

support a finding that, absent a wrongful reduction-in-rank action, Tripodi would have been promoted to a GS

However, the Board remanded this case to the Regional Office because the record did not reflect what actions were av

it abolished Tripodi's GS-13 supervisory position in 1978, or the position to which Tripodi would have been en

Tripodi voluntarily retired. The Board dismissed the petition for enforcement for mootness. 
D. Requests for Reconsideration by the Office of Personnel Management 

The Director of the OPM may request the Board to reconsider final Board orders. The grounds for such a request ar

interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will hon a civil service law, rule, regulation or policy directive. The Director must either participate in a Board proceeding oreconsideration before the Director may petition the court for judicial review. 

Schaeffer v. Office of Personne Management, MSPB Docket No. CH07318410069 (8/15/85). The Board denied as untimely OPM's request for reconsideration of the final decision, but reopened and reconsidered the case on its own initiative and concluded that the remedies it had given Schaeffer were unauthorized. After finding that the Immigration and Naturalization Service had incorrectly rated Schaeffer "unsuitable" for a position as a border patrol guard, the Board ordered INS to cancel the unsuitability rating, to place Schaeffer in a position he would have had absent the unsuitability rating, and to give Schaeffer back pay and benefits. On reconsideration the Board concluded it had no authority to order an applicant to be appointed to a position or to be given back pay and benefits. Schaeffer was entitled only to be placed on the eligibility list for appointment as a border guard. 
Special Counsel v. Williams, MSPB Docket No. HQ12068410013, (7/24/85). OPM sought reconsideration of a 

Special Counsel had authority to prosecute employees for improperly accepting gifts from subordinates in violation Board denied the petition on the ground that OPM had already participated in the case as amicus curiae and, th

reconsideration. 

Cofield v. Government Printing Office, MSPB Docket No. DC07528110599COMP (3/1/85). The Board denied OPthe decision holding that the GPO's refusal to place Cofield in his former position of Policeman, First Class, constitutecompliance wi th the Board’s reversal of Cofield's removal. The Board held that OPM was asking for reconsideration Board interpretation of civil service law, as required under 5 U.S.C. § 7703(d) and that contrary to OPM's contentionsto direct GPO to reinstate Cofield to his position as Policeman, First Class, regardless of the implicit direction that Co

and regardless of the agency's discretion to detail and assign employees. 

Sarver v. Department of Treasury, MSPB Docket No. SF07528210370COMP (3/22/85). The Board granted reconsideration in part and denied in part. OPM contended the Board lost jurisdiction after the appellant filed an rescinded Sarver's removal. The Board's presiding official dismissed the appeal as moot. The Board held that the aremoval action followed by the detail and reassignment of appellant to a materially different position did not coremoval action. The Board had jurisdiction not only over the appeal but over any question of compliance even aftremoval and the Board's consequent dismissal of the appeal was moot. The Board granted the petition for reconsidTreasury was entitled to a hearing before being ordered to place Sarver in a specific position. The Board held tcompliance decision unless the parties have had an opportunity to be heard on the merits of the case. It remanded 

appeal from the reassignment action. 

E. Mixed Cases 

The most significant issues relating to mixed cases, those involving a matter appealable to the Board associat

discrimination, continue to center on an agency's responsibility to make reasonable accommodation to a qualified 

under the Rehabilitation Act. 

When the Equal Employment Opportunity Commission disagrees with a Board decision and remands the case to th

§ 7702(b)(5)(B), the Board may agree or disagree with the EEOC's decision. Upon disagreement with an EEOC 

certify the case to a Special Panel described in section 7702(d)(6). 
During 1985 the President appointed and the Senate confirmed the first Chairperson of the Special Panel. The Boa

Panel the case of Ignacio v. U.S. Postal Service, MSPB No. SF07528110438, EEOC Petition No. 03820090, in wh

disagreed as to what constitutes reasonable accommodation for a handicapped employee. 

Ignacio was discharged from his position with the U.S. Postal Service. In his appeal to the Board, Ignacio allege

agency discriminated against him because of his handicapping condition. Upon Ignacio's petition to the EEOC to revthe EEOC disagreed with the Board's finding of no discrimination. 

When EEOC referred the case back to the Board, the Board agreed with the EEOC that the Rehabilitation Act 

contrary provision in a negotiated agreement. A Board majority, however, disagreed with the EEOC that considerrequired as a means of reasonable accommodation of an individual's handicap. The Special Panel will in due course de

F. OPM Regulation Review 

The Board is required by 5 U.S.C. § 1205(c) to review OPM rules and regulations and theirimplementation 

commission of prohibited personnel practices. The most significant case in this area was Larson. 

Larson v. OPM, MSPB; Docket No. HQ12068510028 (11/21/85). Larson petitioned the Board pursuant to 5 Ureview OPM's implementation of section 2601 of Public Law 98-369, "Deficit Reduction Act of 1984," signed iSection 2601 amended the Social Security Act and the Internal Revenue Code to provide retroactively that perspositions after December 31, 1983 would be subject to Social Security withholding. Larson argued that OPM incorrectly because Congress did not intend retroactively to exclude persons with many years of prior Federacoverage under the prior retirement system merely because they happened to be holding a temporary position Board found that OPM's interpretation was consistent with section 2601 of the Deficit Reduction Act and, fur

additional allegations, that the Air Force did not deceive Larson concerning her employment and retirement r

Larson's request for review because her real concern was not the OPM implementation of the statute but the itself, which the Board has no power to overturn. 
Litigtion 

VI. Litigation 

At the end of the fiscal year, there were 153 appeals in federal circuit courts in which OGC was representing th

intervenor. Several involve important issues of first impression. Crumbaker v. MSPB, Fed. Cir. No. 85-1982, arg

case concerning the proper method for computing a reasonable attorney fee award, presents the question of whe"lodestar" (the amount determined by multiplying the hours times the attorney's hourly rate) is warranted. The Boa

was warranted by the extent of Crumbaker's counsel's risk of nonpayment or of delay in his receipt of payment. 

Two other attorney fee appeals in the Federal Circuit, Goodman v. MSPB, No. 85-2803, and Balaban v. MSPB

question of whether the Equal Access to justice Act applies to MSPB proceedings involving an agency administrative law judge instead of, or in addition to, 5 U.S.C. § 7701(g)(1), the attorney fee provision of the C

These appeals also challenge Board rulings that an award of fees was not warranted under 5 U.S.C. § 7701(g)(1). 

Another appeal raises questions concerning the relationship between MSPB and OPM under the Reform Act. H

Fed. Cir. Nos. 85-2025 and 85-2308, argued December 10, 1985, is an appeal filed by OPM under 5 U.S.C. § 77standards the Board has established before it will entertain an OPM petition for reconsideration. Representing OGC defended the Board's decision that it is not required to reconsider at OPM's request a nonprecedental regi

case also concerns an OPM attack on the requirements in MSPB regulations for petitions for review of regional off

Three other court appeals by OPM, the only federal agency which is statutorily authorized to seek judicial review 

pending in the Federal Circuit. OGC has filed a brief on behalf of the Board, which is participating as intervenor Cir. No. 84-1160. There OPM is seeking review of a decision finding that Acosta and several other individuals credit towards retirement for government service pursuant to personal service contracts. 

OGC is also intervening on the Board's behalf in Devine v. Andrzjewski, Fed. Cir. Misc. Docket No. 47, whe

Board decision invalidating an OPM regulation that permitted agencies to furlough employees for 30 days or le

adverse action procedures. Finally, in Horner v. O'Connor, Fed. Cir. Misc. Docket No. 8, OPM contends the Board Special Counsel's investigatory-prosecutorial authority extends to violations of the government ethics or code oarguing for the Board that an interpretation of the statute governing the Special Counsel's authority to investigate the basis for OPM's seeking judicial review under 5 U.S.C. § 7703(d). 
Appeals in four dif

Board decisions in prSpecial Counsel to dcommitting prohibiteSection 1207 of Title hears these cases, proin the circuit in employee resides or MSPB, D.C. Cir. December 18, 198challenges the Board's GS-14 nonsupervisory idling a subordinate refusing to recommvacancies. The Boaviolated the subordinfor his writing a letteand releasing informinvestigator. The findings on which tpractice determinatioBoard's conclusion this not available in a scase. 

Starrett v. MSPB, 4th Cir. No. 85-1694, is an appeal filed by the Director of the Defense Contract Audit Agency from a Bhim and fining him $1000 for reassigning an employee in reprisal for the employee's whistleblowing concerning costing icontractor. Evans and Tueller v. MSPB, lith Cir. No. 85-8545, is the appeal of two other supervisors who were fined $500 

the same employee's reassignment in retaliation for his protected whistleblowing. 

In Filiberti v. MSPB, 9th Cir. No. 85-7354, the employee has appealed from a decision disciplining him for atte

applicant for employment in violation of 5 U. S. C. § 2302 (b) (5). Filiberti also challenges the Board's decision, based 

serving the suspension ordered by the Board, that his pay for accumulated annual leave should be reduced by the amount had he served the suspension. Department of Justice attorneys filed the petition on Filiberti's behalf, and a pending motio

the court to strike their appearance as unauthorized counsel. 

Board decisions dismissing appeals for lack of jurisdiction which were affirmed include Carey v. MSPB, 768 F.2d 1338 (F

MSPB jurisdiction under 5 C.F.R. § 330.202 to consider a claimed violation of reemployment priority rights when petit

injury as required by the regulation conferring the appeal right, and Schaffer v. MSPB, 751 F.2d 1250 (Fed. Cir. 1985), rearly termination of pay retention under 5 U.S.C. § 5366 as a result of a subsequent RIF transformed the employee's clasbasis for the pay retention) into an appealable matter. The Schaefer decision approves the Board's use of standard-langua

deny petitions for review when appropriate. The Board's treatment of untimely appeals was upheld in Edgerton v. MSPB

July 15, 1985 where the Court agreed with the Board that good cause for excusing the untimeliness of Edgerton's appeal frresignation was not shown because he was not diligent in filing his appeal after learning where and how to appeal to the MS
The Board's ruling that it lacked the authority to require the Special Counsel to pay attorney fees of an employee 

1207 disciplinary action was upheld in Saldana v. MSPB, 766 F.2d 514 (Fed. Cir. 1985). The court agreed that immunity could be found where section 1207 and section 7701 parallel each other in the procedures they providauthorizes fee awards. This contrast and the fact that the conduct which is the subject of a section 1207 proceeding 7701 precludes finding a clear authorization. 

In addition to these cases, OGC attorneys were monitoring at any given time between 400 and 600 Federal Circ

employing agency or OPM was the respondent. Such monitoring is necessary to insure that the Board's position in presented to the court. 

In Lovshin v. Dept. of the Navy, 767 F.2d826 (Fed. Cir. 1985), cert. filed, the Board intervened to request that the cour

further consideration in light of the Board's intervening decision in Gende v. Dept. of Justice, 23 M.S.P.R. 604 (1984)

decision pertaining to the Civil Service Reform Act's provisions for performance-based actions. The Board held that, w

Congress intended Chapter 43 of Title 5, U.S.C., to be the exclusive procedure for performance-based actions after Ocset for the new system to be fully operational). 

The Federal Circuit disagreed with Gende and, in an 8 to 5 en banc decision in Lovshin, held that agencies could proce

Title 5 in removing and demoting employees for poor performance. Mr. Lovshin has petitioned the Supreme Court for 

the Board's decision in Gende was correct. After obtaining authorization from the Solicitor General of the United Statefiled a brief in the Supreme Court supporting Mr. Lovshin's petition. 

26 
MSRS 

VII. Reports by the Office of Merit Systems Review and Studies 

The Office of Merit Systems Review and Studies conducts studies to determine if the merit system is being adeq

the significant actions of OPM, and reports its findings to the President and Congress. In 1985, MSRS prepared seve

A. Significant Actions of the Office of Personnel Management During 1984 This report examines important OPM programs, policies, and activities during 1984-tracking them into 1985 in someffect on the merit principles and on prohibited personnel practices. The report covers four major subject areas: 

1. Attracting and retaining a quality workforce; 2. The joint OPM-OMB "Grade Bulge" initiative; 3. A review of compensation practices; and 4. An evaluation of the OPM performance management evaluation program. 5.

B. Study of MSPB Appeals Decisions for FY 1983 

This report provides detailed information concerning the decisions made in the regional offices and Headquarte

appeals filed, and the outcomes of those appeals. It provides demographic information on the appellants and cat

formation by Board region and individual Federal agency. 

C. Study of MSPB Appeals Decision for FY 1984 

This report is similar to the study of FY 1983 appeals decision described earlier with an important exception; it p

analysis of appeals decisions. This trend analysis provides the reader with a more complete perspective of th

decisions.