U.S. MERIT SYSTEMS PROTECTION B

SIXTH ANNUA
The U.S. Merit Systems Protec

Herbert E. Ellin

Maria L. JohDennis M. De

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 Sixth Annual Report of the Merit Systems Protection Board. This Report covers the activities of the Board for Calendar Year 1984. 

Herbert E. Ellingwood 

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

of Representatives 

Washington, D.C. 
Contents 

I. Introduction .........................................................................................

II. The Board Members .................................................................................III. Organization of the Board ........................................................................

The Special Counsel .........................................................................Organization Chart ...........................................................................

IV. Summary of 1984 ...................................................................................

Backlog Eliminated ...........................................................................Payroll and Personnel System Improved ..............................................Expedited Appeals System Fully Implemented ......................................Case Tracking System Implemented ...................................................Space Reduction Program Begun ........................................................

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

A. Regional Offices .........................................................................

B. Office of the Clerk of the Board ....................................................C. Office of Appeals Counsel ............................................................D. Office of Administrative Law Judges ..............................................E. Office of General Counsel ............................................................

VI. Major Appeals Issues ..............................................................................

A. Appellate Jurisdiction Cases ..........................................................

Chapter 43 Appeals ................................................................Chapter 43 Appellate Decisions ................................................Other Significant Appellate Decisions ........................................

B. Original Jurisdiction Cases ............................................................

Complaints Against Administrative Law Judges ...........................Actions Initiated by Special Counsel ..........................................

Stay Requests ..................................................................

Disciplinary Actions—Non-Hatch Act .........................................

Disciplinary Actions—Hatch Act ................................................Discovery Rights ....................................................................

C. Requests for Reconsideration by the Office of Personnel Management .

D. Mixed Cases ...............................................................................E. Litigation ....................................................................................F. Regulation Review .......................................................................

VII. Work of the Office of Merit Systems Review and Studies ..............................

A. The 1984 Report on the Senior Executive Service .............................B. Blowing the Whistle in the Federal ,Government: A Comparative Analys

and 1983 Survey Findings .......................................................

C. Significant Actions of the Office of Personnel Management: A Labor-Ma

ment Dialogue .......................................................................

D. Significant Actions of the Office of Personnel Management During 1983 
I. Introduction 

The U.S. Merit Systems Protection Board was created pursuant to Reorganization Plan No. 2 of Service Reform Act of 1978 ("the Act"). An independent judicial agency, the Board is comprisPresidentially appointed, three-member panel and charged with acting as the "watchdog" of the FedThis mandate is implemented by: • Adjudicating employee appeals and actions brought by the Special Counsel in a fair and impartial m• Conducting special studies of the merit systems to determine whether they are free from p

practices; 

• Analyzing and reporting on the significant activities of the Office of Personnel Management (OPM); a• Reviewing the regulations issued by OPM to determine whether they require the commission of p

practices. 

Because the Board has broad powers in reviewing the personnel practices of OPM and the numerous agencies within its jurisdiction, Congress took extra measures to assure that the Board would have tindependence necessary to properly exercise its authority. These protections include: 

• Guaranteeing the independence of the Board members by providing for non-renewable terms and 

only under extraordinary circumstances; 

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

and the President, thus eliminating the need for prior approval by the Office of Management and Bud

• Permitting the Board to appoint personnel essentially free of approval by the executive branch; and • Representing itself in the Federal courts except before the Supreme Court. 

The Board consists of 11 trial-level regional offices and an appellate forum at its headquarters in W

Board employs over 350 staff and has a budget of over $20 million. In its first five years, the Boar

65,000 appeals and petitions for review. Board decisions have been sustained by the U.S. Court of Aof the cases decided by the court. 
II. The Board Members 

The three Board Members are appointed by the President with the advice and consent of the ensure the independence of the Board, the designation of any member as Chairman must bSenate; Members serve a seven-year term and may not be reappointed; and Members may be an extraordinary standard of inefficiency, neglect of duty, or malfeasance in office. 

Herbert E. Ellingwood was appointed by President Reagan to be Chairman on December 14, 1981. At the time of his appointmeserving as Deputy Counsel to the President. Prior to his White House private law practice with the firm of Caldwell & Toms in Sacramen1975 to 1979, Ellingwood was Special Assistant Attorney General for Legal Affairs Secretary to Governor Reagan from 1969 to 1974. 

Maria L. Johnson was nominated by President Reagan to the Board on March 18, 1983, and was confirmed by the Senate on May 6. Johnson was designated Vice-Chair on September 19, 1983. At the time of her appointment, she 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, D.C.
Dennis M. Devaney was nominated by President Reagan to be Mem

on August 4, 1982, and confirmed by the Senate on August 20, 1982. appointment, Devaney was in private law practice in Washington, D.CTighe, Curhan and Piliero. From 1977 to 1979, Devaney was CouMarketing Institute and from 1975 to 1977, he served as Assistant Gthe U.S. Brewers Association. 
III. Organization of the Board 

The Merit Systems Protection Board is comprised of a number of operating offices which carry oorganization, and is presided over by the three-member Board. The Chairman, as Chief Executivwith responsibility for its overall operations. Authority for the day-to-day management of the Board, both in headquarters and its eleven delegated to the Managing Director by the Chairman. The Assistant Managing Director for Regional Operations coordinates procedures and review

adjudications of the regional offices. 

The Assistant Managing Director for Management formulates, plans, and coordinates improve

management of the agency. 

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

most court actions. 

The Office of Appeals Counsel drafts final decisions for the Board based on petitions for review 

rendered in the regions, and the records of cases reopened by the Board on its own motion. 

The Office of Legislative Counsel represents the agency before the Congress and the publi

publications, and provides the agency with audio-visual and graphic arts services. 

The Office of Administrative Law Judges adjudicates special cases including actions concerninActivities Act, and hears disciplinary cases and proposed removals of administrative law judges as initiated by the Special Counsel. This office also has jurisdiction over, and issues orders in resposubpoenas and discovery filed in the Board's regional offices. The Office of Merit Systems Review and Studies reviews Governmentwide personnel policensure that they are in accord with merit system principles. The office also conducts annual oversand participates in the review of OPM-issued rules and regulations. The office's findings are reporthe President and made available to the public. The Office of the Clerk, reorganized this year and formerly known as the Office of the Secr
petitions to the Board. The Board has delegated to the Clerk of the Board responsibility for ruling o

matters relating to case adjudication, publishing and distributing Board orders and opinideterminations on Freedom of Information and Privacy Act requests, authenticating official recorofficial minutes of Board meetings. The Office of the Clerk also has the duties of overseeimaintaining documents and a reading room for the public, and publishing regular summaries of sThe Office of the Comptroller, established in 1983, directs and coordinates the financial and administrative services functions of the Board. The Office of Personnel is responsible for managing the internal personnel programs of the Board. The Office provides personnel assistance to management, employees, and applicants for employment. The Office of Equal Employment develops and monitors the implementation of the Board's equal employment opportunity programs and policies. The Special Counsel The Office of Special Counsel has 

independent investigatory and prosecutorial authority and is responsible for bringing certain actions before the Board. The Special Counsel is required by 5 U.S.C. § 1206(m) to submit his own annual report to the Congress; therefore, this report will not address Special Counsel activities except as they pertain to Board orders and decisions. 

The year was, however, significant for the relationship between these two entities. In July, Board Cand Special Counsel K. William O'Connor announced jointly their agreement to administer operations, effective October 1, 1984, thus ending a period in which there had been some shfunctions.
IV. Summary of 1984 

This Was, for the Board, a year of achievement, utilizing to the fullest its personnel resoumanagement techniques; a year, according to Chairman Herbert Ellingwood, in which this concentrate on its work and demonstrate just how well it could do its job. "In short," said Ellingwowhich this agency proved its excellence and took giant strides on the path to being the governmagency." "What is central to the issue of the administration of justice," noted the Chairman late in 1984, tribunal, whether state or Federal court or administrative body, to process its caseload efficiently aarticulate the law in a coherent, instructive way. Tribunals need not only to reason well, but alsstewardship of their public resources. It is in this regard that I believe that the Board has becoagency for both the Federal ad-judicatory systems and for court and state tribunals nationwide." The record of the Merit Systems Protection Board is one of accomplishment, coming back from master a workload that, to some, would have seemed insurmountable. Through reliance on aplanning effort, the Board, in 1984, examined all procedures critical to its primary functions. The pwas to ensure not only the efficient use of its resources on a daily operational basis, but also thmanagement framework which will be durable and practical in the years ahead. Central to this revcommitment to the stewardship of the merit systems. The Board met many tight, self-imposed deadlines while maintaining quality control. 1984 was Board: • virtually eliminated case backlogs for the first time in its history; • made major automated improvements to payroll and personnel management systems; • implemented an alternative appeals process which reduces time and costs in the adjudica

precedential appeals; 

• developed in-house training programs for agency attorneys who hold hearings in the regional off• expanded and refined an automated case tracking system; • began a major space reduction effort to effect major savings in ongoing rent payments for Board • continued to strengthen its management staff through a series of in-house management semina
Backlog Eliminated 

The Merit Systems Protection Board, by adopting new methods and computer technology, has virtually eliminated its case backlog in the regions and at headquarters. At the time of its founding only six years ago, the Board inherited an accumulation of pending Federal employee appeals from the Civil Service Commission. Then, late in 1981, as a result of the Air Controllers' strike, it received another 11,000 appeals in addition to an already burgeoning workload. Elimination of this backlog had been a major planning objective for 1983-84. 

In the regions, the caseload was reduced to fewer than 

1,500, which is considered a normal inventory, and over 99% of the appeals were adjudicated within the Board's 120-day time limit. 

In headquarters, the Office of Appeals Counsel, which proposes final opinions based upon petitions for review (PFR's) from regional office decisions for the Board's consideration, reduced its caseload from 1,511 cases at the beginning of FY 1984 to fewer than 400 by the end of the year. The Board Members also reduced their caseload from 929 to under 300 cases—and announced that they would be consistently issuing final appeals decisions within 110 days of the filing of a PFR. Payroll and Personnel System Improved The Board in 1984 converted its personnel, payroll, accounting and administrative payments system from the combination of in-house and Department of Interior Systems to the USDA's National Finance Center. The conversion required that, in a very short period of time, equipment be purchased and installed, personnel trained, and all personnel payroll and accounting be restructured and transferred to the new integrated data base. 
The conversion provides the Board with a fully integrated and automated personnel, payroll, and a

payments system that is able to produce data on work measurement, personnel, and finances. In 

transition, the Board's management staff completed a major review and update of the personnel, paccounting records. 

Expedited Appeals System Fully Implemented While the appeals backlog challenged the Board to process cases under a formal legal systemcontent simply to make that system, by itself, work more efficiently. Instead, the Board developed and implemented a Voluntary Expedited Appeals Procedure (VEAintroduction, has applied Board precedent to routine cases while saving the Board up to 40% ocosts per appeal. Decisions in these cases are issued in 60 days—one-half the normal caFurthermore, agencies realized savings of over 30% in witness fees, per diem, and travel costs. This innovative system requires the parties to confer on facts and legal issues, and of ten presiding officials as third party facilitators. Under VEAP the Board requires parties to make a goo

pleading called a Joint Appeals Record. This document fosters an exchange of pleadings and an facts and issues in dispute. 

The presiding official may facilitate settlement discussion at the joint request of the parties. The and the involvement of the presiding official helps create an environment which appears to enhanvoluntary settlement. Experience to date demonstrates that more than twice as many expedited settlement when compared to similar cases filed under the formal procedure. At year's end, the Board received an independent professional study of VEAP. Based upon the rec

that study the Board announced plans to proceed with nationwide implementation of the Volunta

Procedure.
Case Tracking System Implemented 

Central to many of the accomplishments and the expeditibacklogs of 1982 and 1983 was the development of the Bocase tracking system.Developed largely in-house under the auspices of the Office of Managing Director for Management, the case tracking system more than 2 years. In July 1984, an order was issued implemBoard-wide, and mandating the end of all manual case trackinThe case tracking system captures information relative to an 

all major events in its processing. Constantly updated, immediately available to all of the Board's offices. Such information offers management many more options in copiworkload. It allows better allocation of resources and avproblems and backlogs. 

In addition, the system automatically issues regular repoDirector as well as senior Board officials at headquarters. In th

provide detailed and summary information concerning all cases for which a region is responsible. system provides reports containing detailed information on all appeals in the agency. 

The Board is required to report to Congress about appeals that are not decided within 120 days. This sBoard to keep that Congressional report minimal. Space Reduction Program Begun In accordance with the Administration's efforts to reduce the amount of leased space occupied by the MSPB instituted a space reduction program that will reduce Board office space from 94,549 sqImplementation of the space reduction began in 1984, and will be completed in 1985. 
V. The Adjudicatory Framework 

Adjudication of appeals constitutes the major activity of the Merit Systems Protection Board. Five Board offices besides the Board itself are directly involved in the adjudicatory work: the Office of Appeals Counsel, the Office of Administrative Law Judges, the Office of General Counsel, Clerk of the Board. A. Regional Offices Adjudication of cases generally begins with the filing of an appeal in one of the Board's eleven reg

the large influx of ATC appeals in 1981, these offices had prided themselves on being able to ptheir appeals within the 120 day limit set by the Board. To conquer the backlog the regions not the overdue appeals, but also had to adjudicate the large number of new appeals that continFebruary 1, 1984 declaration that the backlog had been eliminated was, therefore, an historic one

In 1984 hearings were held in 35% of all cases adjudicated, a 5% increase over the previous yinto 3,121 hearings held during the fiscal year, with a total of 7,805 decisions being issued. In an additional effort to increase effectiveness, emphasis was placed on enhancing the profeBoard's presiding officials. Between May and August all presiding officials were provided supplehearing management. The training included video presentations depicting challenging circumstanduring a hearing, followed by group discussions on effective management of those situations. Several regional offices developed the capability to tape-record their own hearings. This not only it also served as a cost-cutting measure; in years past the Board has spent as much as $1.5 miand court reporter fees. B. Office of the Clerk of the Board Decisions issued by the regions become final after 35 days. During that time either party, the Management, or the Special Counsel may petition the Board to review this initial decision. The Bothe decision on its own initiative. Petitions for review pleadings and motions are received and and processed in the Office of the Cle

Office of the Secretary). With the incorporation of several legal duties, the role of the Office of the after that of an appellate court. 
In 1984 the Office of the Clerk eliminated its case backlog and reduced its time for processing P

35. The implementation of more efficient processing techniques has allowed the office to continstandard in over 95% of cases, despite a staff reduction. 

Another accomplishment for 1984 was the completion of a physical inventory of over 11,00

required for court litigation. 

A major addition was the implementation of a program called Early Alert, which summa

significant Board decisions to all Board offices within hours, via electronic mail. A full-text cdispatched within 24 hours. This program has enabled presiding officials nationwide to maintain final Board orders. 

Finally, in addition to publishing volume 13 of Decisions of the U.S. Merit Systems Protection Bo

Clerk improved and expanded the Digest, a monthly summary of noteworthy Board actions, 

appeals and significant litigation cases. Subscriptions to the Digest increased from 5,221 to 6,200 

C. Office of Appeals Counsel 

The Office of Appeals Counsel (OAC) has the primary responsibility for analyzing petitions for re

and drafting final opinions and orders for the Board Members' consideration. 

OAC also met its production goals in 1984. At the beginning of the fiscal year, the Office had a 

ATC petitions, largely due to the concentration of resources that had been necessary the previous 

adjudication of petitions for review involving 5,701 controllers. Because of the increased activity in 

offices already described, OAC faced the prospect of a year in which large numbers of new petition

To meet this challenge, the office developed a comprehensive plan to systematically process t

while reducing the backlog. Staff resources were realigned and redirected, new staff membeprehensive training, and administrative changes were made to better utilize the new case tracking its usefulness to OAC. Additionally, new methods of case processing were developed and a morsystem was instituted.
Even though receipts were high, the productivity 

of the Office of Appeals Counsel increased and the backlog was substantially reduced while the high quality of the opinions was maintained. D. Office of Administrative Law Judges The Office of the Administrative Law Judges (OALJ), adjudicates certain special categories of cases. These involve such matters as prohibited political activities by Government employees (Hatch Act violations), disciplinary proceedings against administrative law judges, complex or sensitive appeals filed in the regional offices and assigned to it by the Board, and prohibited personnel practice matters based upon a complaint filed by the Special Counsel. Decisions of the Board's Administrative Law Judges in original jurisdiction cases (i.e., all cases not involving appeals from agency actions) are recommended decisions to the full Board for final action. Unlike initial decisions, recommended decisions do not become finaland must be acted upon by the full Board. Another function of the OALJ is to issue subpoenas and orders involving motions for discovery filein regional cases. This year, the OALJ ruled on approximately 800 motions for discovery and subpoE. Office of General Counsel As legal advisor to the Board, the Office of General Counsel (OGC) provides a variety of legal servits offices. Areas in which OGC made significant contributionsto the Board's overall mission in 1jurisdiction cases; appellate jurisdiction cases involving designated issues; litigation; cases witopportunity issues, referred as to "mixed cases"; regulation reviews affecting the Federal management relations; Government ethics and agency obligations under The Government in TFreedom of Information Act and the Privacy Act. In addition, the Office of General Counsel was frequently called upon to advise the Board on precedlegal issues arising in employee appeals. 
VI. Major Appeals Issues 

The Board has a major responsibility to examine thoroughly issues that come before it in ap

agencies, employees and its own presiding officials with precedent-setting opinions applying provisions of the Civil Service Reform Act. 

This year, as in previous years, the Board issued a number of decisions addressing and int

significance that will be used as precedent in future appeals. A brief discussion of some of the mosissued by the Board in 1984 follows. 

A. Appellate Jurisdiction Cases 

Most cases coming to the Board Member, stem from requests by either an appellant or at ag

Petitions for Review to examine a presiding official's decision. The PFR's must be based on specmere disagreement with a regional office decision. 

Chapter 43 Appeals Among the most important appeals opinions issued by the Board was a group of decisions issued in late 1984 that comprehensive analysis of several important issues arising under Chapter 43 of title 5 of the U.S. Code. 

Chapter 43 is the provision of the Civil Service Reform Act of 1978 that addresses the area of rem

other remedial actions taken against Federal employees for performance-related reasons. Chaptethe Reform Act to clarify the authority of Federal managers to demote or remove poor performers with certain rights not available under other sections of the law. 

Because Chapter 43 actions have to be based upon a new performance appraisal system tha

required to have in place until October of 1981, the law relating to Chapter 43 had not been dev

that has the law with respect to the disciplining of employees for conduct-related reasons. Chapused until recently for the removal or demotion of poor performers. 

The Board's six lead decisions interpreting Chapter 43 specified when agencies would have to 

interpreted several key provisions of the new law. Prior to deciding these appeals, the Board puaddressing many of the issues. 
Chapter 43 Appellate Decisions 

Modification of Penalty in Performance

Appeals -- In Lisiecki v. Federal Home Loan

Bank Board, the Board ruled that it has no 

authority to review an agency's selection of removal or demotion in performance cases. The Board distinguished performance appeals from conduct related appeals in which the Board had the option of modifying the penalty if it is found 

to be unreasonable. 

Burden of Proof Standard -- In Griffin v. 

Department of the Army, the Board held that an agency must prove by substantial evidence that the performance appraisal system relied on to take the personnel action had been approved by the Office of Personnel Management. 

Opportunity to Improve -- The Board also 

found in Sandland v. General Services 

Administration that agencies must prove by substantial evidence that employees were providedemonstrate acceptable performance before removing or demoting them under Chapter 43. 

Absolute Per formance Standards -- In Callaway v. Department of the Army, the Board held tha

its discretion when it establishes an absolute performance standard requiring courtesy as a crabsolute standards, the Board stated, may be appropriate only in situations where an employee's performance standard once would result in "death, injury, breach of security, or great monetary lo

Where the Board finds such abuse of discretion in the creation of performance standards, it will action without considering the specific performance that prompted the action. 
Components of Critical Elements -- In Shuman v. Department of Treasury, the Board exam

removal based upon unacceptable performance of some, but not all, of the components of one critappeal, the Board ruled that the burden is on the agency to present substantial evidence that formance warranted an unacceptable rating on the element as a whole, based on the employee'some components of that element adequately. Use of Chapter 43 -- In Gende v. Department of Justice, the Board held that as of October 1, 19

the exclusive statutory avenue available to agencies seeking to demote or remove employees fo

with certain limited exceptions. The Board allowed 30 days for agencies to reconsider any personnhave pending that are not in accord with this ruling. This decision was reversed by the Federal CirNavy, no. 84-1002, 9-21-85. 

Other Significant Appellate Decisions Workers Compensation and AWOL -- Stith v. Housing and Urban Development, DC07528310

Board found that a grant of worker's compensation by the Department of Labor's Office of Wornegates an agency's charge of absence without leave throughout the period of time for which su

provided. This decision was reversed by the Federal Circuit. See Lovshin v. Navy, no. 84-1002, 9-2

Temporary Appointment and Procedural Rights -- Carter v. Department of the Army, DE07

84). The Board found that employees serving under temporary appointment pending establish

(TAPER Appointments) are considered employees and upon termination of appointment beyond 1 the procedural rights granted other employees under the Civil Service Reform Act.
Retirement Credit -- Acosta, etal v. OPM, DC083180

The Board held that all Federal service is creditable for repurposes even though some of the service is not in a traditioby other civil service laws. In this case, the employees shoemployees under contract entered into with government offiservices were authorized and called for the performance of a F

Reemployment Rights After Injury -- Emelio v. United St

DCO353811880, (7-9-84). The Board held that priority recovery from a compensable injury requires that an employee the time of his injury be placed on a priority list and reemplooccurs, absent egregious conduct.

Misconduct and Nexus -- Johnson v. Department of Health a

PH07528110407, (8-17-84). An agency has the burden of which is a connection between misconduct and the efficiency ocase, the Board declared that an agency can rely on a presummay arise in certain egregious circumstances. 

RIF's and Vacancies -- Baker v. Department of Commerce, S22-84). The Board determined that reduction-in-force regulatagencies to fill vacant positions. Attorney Fees -- Gerlach v. Federal Trade 

Commission, DC07528010020ADD, (4-19-84). The Board concluded that the 

information contained in attorney fee arrangements had an important bearing on the prevailing market rate, and therefore, the terms of such agreements must be submitted with any fee request. 
Summary Dismissal 

v. Department DE07528210125, (5-

held that a presappropriately grant afor summary dismissthe presiding officiaagency has not estabcase. However, the would be inappropriatmotion without affordopportunity to contest 

Back Pay Awards 

Department of the Arm

(6-12-84). The Boarexercise authority to aappropriate under 5 when it reverses an ag

Enforcement -- Sp

Federal Aviation Administration, BN075281- F0717COMP, (10-25-84). The Board held that it has judicate the merits of petitions for enforcement which allege agency error in compliance with a fina

Agency Transfer of Functions -- Certain Former Community Service Administration Employe

Department of Health and Human Services, AT03518210251, (6-18-84). The Board set forth the cdetermining whether functions performed by one agency have transferred to another agency propriety of the identification methods contained in the transfer of function regulations. 

Free Speech -- Oskow v. Office of Personnel Management, SF07528210950, (12-18-84). The 

Amendment protections do not re quire an agency to tolerate action which it reasonably believe

undermines supervisory authority, and destroys close working relationships within an organization
Protected Speech and Grievances -- Kennedy v. 

Department of the Army, PH07528110483, (7-17-84). The Board set forth an analysis of whether statements made by an employee during a grievance proceeding were protected statements and could form the basis of disciplinary action. 

Suspensions Based upon Criminal Charges --

Covarrubias v. Department of the Treasury, DA0 

7528310171, (10-3-84). The Board held that if an 

employee is acquitted or receives a dismissal of criminal charges which served as the basis of an indefinite suspension, the agency may initiate disciplinary action on the underlying conduct or reinstate the employee. Reinstatement may entitle the employee to back pay for the entire period of suspension. 

Furlough Regulations -- Hastie v. Department of Agriculture DA07528210615, (11-1-84). The Board found that OPM's emergency furlough regulations are inconsistent with the provisions of the Civil Service Reform Act and concluded that actions bations were not in accordance with law. 

SES and RIF -- Facer v. Department of Energy, DC03518310289, (11-9-84). The Board held that 

U.S.C. § 3596, prohibiting the removal of an SES employee before the expiration of at least 120 da

administration, did not apply to a separation taken under the reduction-in-force procedures.

Oxley v. Department of Commerce DC03518310771, (11-15-84). The Board held that application o

RIF regulations was subject to the same type of review accorded an agency's application of RIF reg

FLRA Comity -- Gragg v. Department of the Air Force, DA07528310484, (11-20-84).The Board foaction could not be sustained where the basis of that action was an agency policy which was in diran FLRA decision.
B. Original Jurisdiction Cases 

Cases under the Board's original jurisdiction include complaints against administrative law judge

agency and actions brought by the Special Counsel. 

Complaints Against Administrative Law Judges 

An administrative law judge (ALJ) may not be subjected to an adverse action unless the Board 

agency has established good cause for taking action after an opportunity for a hearing on the recor

In 1984, the Board issued six decisions on agency requests to discipline administrative law 

decisions addressed several major legal issues which are of significant precedential importance.

Performance and Productivity Standards -- Social Security Administration v. Goodman, H

Board held that an action may be taken against an ALJ for poor performance, and that ALJproductivity standards. In Goodman's case, however, the Board found that SSA failed to prove that unacceptably low. 

Good Cause-- Social Security Administration v. Davis, HQ75218210026. The Board expanded upon 

man and held that the "efficiency of the service" standard is not applicable in section 7521 cases. 

"good cause" is a separate and distinct standard. Based upon the nature and effect of the conduct iBoard adopted the recommended decision determining that respondent's lewd and lascivious condcause and authorized Davis' removal. 
Judicial Independence -- Social Security Administration v. Brennan, HQ7521820010, a

Administration v. Manion, HQ75218210008. The Board considered the issue of whether an ALJ m

with instructions that arguably interfere with his ability to hold full and fair hearings and to impartial decisions. In its decisions, the Board addressed the extent to which ALJ's are sub

supervision. 

Brennan, like Goodman, included alow productivity issue. The Board concluded that the agency dproductivity of Brennan was unacceptably low. In Brennan, the Board also held that an ALJ w

appropriate supervision and remanded the case for a further assessment of the record in light of 

on that issue. 

In Manion, the Board authorized a 30-day suspension of Manion for insubordination for refusinassigned cases because of a disagreement on administrative matters. In reaching this decision, agencies must have the right to discipline ALJ's who refuse or fail to follow instructions that do nojudicial independence, and that ALJ's must comply with reasonable management requirements tability to carry out their judicial functions. This decision was affirmed by the Federal Circuit Court o

Good Cause-- Social Security Administration v. Glover, HQ75218210025. The Board held that ve

typist, disrespect of the ALJ in charge, and offensive, intemperate, and ill-considered r

administrative officer made to her subordinate constitutes good cause for a 120-day suspension. Tthat a single relatively harmless statement about a staff member made in a judicial opinion was discipline. The Board held that because the statement was relatively harmless, it did not require agency's or the public's interest in the administrative process against the ALJ's qualified riginterference in the performance of his judicial functions. 

In Glover, the Board articulated its prerogative in an ALJ disciplinary action to determine the pena

the exercise of its authority under section 7521. The Board adopted the criteria for reviewing penagencies in appeals cases (Douglas v. Veterans Administration, 5 MSPB 313 (1981)) as a guide

penalty. 
Misuse of Government Vehicle -- Social Security Administration v. Haley, HQ75218210052. The 

cause to discipline Haley for improper use of a government vehicle in violation of statute (31 U.S.C

codified at 31 U.S.C. § 1349(b)). Haley did not contest the c

the minimum 30-day penalty required by the statute he violadistinguished its penalty authorities under section 7521 in disagainst ALJs, section 1207 in Special Counsel disciplinary actAct matters, and sections 7325 and 1505 in Special Counsel of the Hatch Act. 

Actions Initiated By Special Counsel 

The majority of cases heard by the Board under its original juare actions brought by the Special Counsel. The number of csharply this fiscal year and may be divided generally into thrrequests for stays of agency personnel actions alleged to be personnel practices; (2) requests for disciplinary actions agaemployees for alleged violations of the Civil Service Reform Acomplaints against Federal and certain State and local emploengaging in unlawful political activity contrary to the Hatch A

Stay RequestsUnder the provisions of 5 U.S.C. § 1208(a), the Special Counsel may request a stay of any personncalendar days if the Special Counsel determines that there are reasonable grounds to believe that was taken as a result of a prohibited personnel practice. Any Board member may order such a stay determines that, under the facts and circumstances pleaded, the stay would not be appropriate. If on the request within 3 working days after it is filed by the Special Counsel, the stay becomes effelaw. Under 5 U.S.C. § 1208(b), upon further request of the Special Counsel, a Board member may 15-day stay for up to 30 additional days. Under 5 U.S.C. § 1208(c), the Board may extend the perjority of the Board concurs in the determination of the Special Counsel, but only after an opportunicomment by the agency involved. The Board considered requests for stays of personnel actions in a number of cases in 1984. Two of concerned the Federal Mediation and Conciliation Service and the Department of Commerce. 
Retaliation -- Special Counsel v. Federal Mediation and Conciliation Service[O'Sullivan], HQ12088

Counsel requested a stay of an employee's removal because it appeared that the employee's perforemoval was in rataliation for information provided by the employee to two FMCS officials and thus 2302(b)(8). The Board granted stays pursuant to 5 U.S.C. § 1208(a) and (b). 

Discrimination -- Special Counsel v. Department of Commerce [Beyer], HQ12088410025. The Sp

requested a stay of the proposed removal of a probationary employee in the Department's InternaAdministration. The Special Counsel alleged that the agency's action was motivated by discriminatemployee's political affiliation in violation of 5 U.S.C. § 2302(b)(1)(E) and 5 U.S.C. § 2302(b)(10). three stays, the last of which was still in force at year's end. 

Disciplinary Actions—Non-Hatch Act Monetary Penalties -- In Special Counsel v. Verrot, HQ12068310014, Verrot admitted he co

personnel practice by influencing an individual to withdraw from competition to improve the prospefor appointment to the announced position. The Special Counsel recommended a 60-day suspens$1,000 fine as the penalty, to which Verrot agreed. The Board followed the recommendaadministrative law judge to approve the agreement. This was the first case in which the Board imposed monetary penalties under the provisions of 5 U.S.C. § 1207(b). In addition, the Board adopted the precedent of ordering the Special Counsel to report to the Board on the employing agency's compliance. 

Removal for Retaliation and Discrimination -- In Special Counsel v. Harvey, the Board found that 

Harvey, a Senior Executive Service member, had 

retaliated and discriminated against a subordinate SES 

member in clear violation of the law. The Board ordered Harvey removed from the SES and reduced to a GS-14 without supervisory authority for a total of 3 years.
Disciplinary Actions—Hatch Act 

The Special Counsel is authorized to enforce the Hatch Political Activities Act, and to investigate 

of those Federal, state and local government employees covered by that act. 

As a result of complaints brought by the Special Counsel for Hatch Act violations, in fiscal year 19

ten final decisions in Hatch Act cases, the most important of which are discussed below. 

Statutory Require

In Special Cou

HQ01268210028, the finds a violation of Federal employee unanimously that warranted, the statutpenalty of a 30-day sheld that Morgan had imposed a 30-day sua settlement agreemMorgan's separate allowed to serve the days selected by his held that the statutauthority to impoconsecutive days only

Mitigation -- In 

Chidlow, HQ1206841v. Sims, HQ1206821

v. West, HQ1206821v. Winfield, HQ12

Counsel v. Willett, HQ12068210029, the Board upheld the Special Counsel by finding violations 

ordered the individuals in these separate appeals suspended rather than removed because theflagrant. 
Authorization of Attorney Fee -- In 

Special Counsel v. Saldana, HQ120600020, the Board accepted an administrative law judge's recommendation to dismiss the Special Counsel's complaint charging Saldana with violating the Hatch Act, but held that Congress had not authorized attorney fee awards to the prevailing employee in a Hatch Act disciplinary action. 

Candidacy for Elective Office -- In 

Special Counsel v. Mahone, HQ12068310025, the Board found that Mahone, a state employee, violated the Hatch Act by actively campaigning for partisan elective office. The Board held that the violation warranted her removal. Mahone was aware of the Act's prohibition of her candidacy and was on notice specifically that her candidacy was unlawful even though her campaign was conducted aftweekends. 

Discovery Rights In re Subpoena Addressed to the Office of Special Counsel, [Martin] HQ12008310019, Martin, whremoval by the Air Force, petitioned the Board to enforce a subpoena issued by a Board adminconnection with discovery preliminary to the hearing of her appeal. 

The subpoena commanded the Office of Special Counsel to make available to her its investigcomplaints she previously had lodged with the Office regarding alleged prohibited personnel practClaiming executive privilege, investigative privilege, and work product privilege, the Office of Spe

production of the investigative file. 
The Board rejected several claims of executive and investigative privilege because the Spe

personally make the requests, but did protect from disclosure "work product" documents preparein the Office during its investigation of Martin's complaints. 

Based on an "in camera" inspection, the Board found 29 documents protected by the work p

ordered the Office of Special Counsel to make the remaining 148 documents available for inspectio

C. Requests for Reconsideration by the Office of Personnel Management 

As part of its appellate jurisdiction, the Board may accept from the Director of the Office of Pe

requests for reconsideration of its final orders. Under 5 U. S. C. § 7703(d), the Director may reconsider a final order if the Director determines at his discretion that the Board erred in interplaw, rule, or regulation affecting personnel management and that the Board's decision will have a a civil service law, rule, regulation, or policy directive. Under the law, the Director must either pproceeding or file a petition for reconsideration and have it denied before he can file a petition forder in court. 

Reconsideration of Penalty -- In Burns v. Department of Transporation, SE075281F0498, the BoDirector of OPM is not entitled to reconsideration of a decision reducing a penalty because such a dvolve the interpretation of a civil service law, rule, or regulation. The Board also held that the Direcreconsideration on an issue that was not decided in the original adjudication. The Board found that not been decided, the decision could not have a substantial impact. 

Reconsideration of Regional Office Opinion -- In Grant v. Department of Treasury, AT0752811

that when a petition for review is summarily denied and the initial decision becomes the final decishas no right to petition for reconsideration pursuant to 5 U.S.C. § 7703(d). Because the Board doe

initial decision that becomes final to be precedential, there can be no substantial impact on civil serregulation or policy directive. 

Amending Charges and Seeking Stays During Reconsideration -- In Alfaro v. Department of 

NY075281F0428, the Board held that OPM has no authority to request reconsideration to challenge 

official's denial of the employing agency's request to amend charges at the hearing. The Board also 

OPM petitions the Board to reconsider a decision, OPM rather than the employing agency is the proa stay pending reconsideration. 
D. Mixed Cases 

"Mixed cases" include one or more allegations of prohibited discrimination raised in conne

appealable to the Board. 

Following a Board decision in a mixed case, an appellant may petition the Equal Employment Opp

for review. In the event EEOC disagrees with the Board decision, the case may be remanded deliberation. The EEOC remanded nine of these cases during fiscal year 1984. 

The most significant issues relating to mixed cases continue to concern the extent of Federal ag

make reasonable accommodation to a qualified handicapped individual under the Rehabilitaconcerning handicapped employees were the major issues in cases that were remanded to the during 1984. 

Handicap Accommodation -- In Alvarado v. U.S. Postal Service, SL07527990002, EEOC Pe

Alvarado, a mail handler with the Postal Service, was removed from his position for failure to mschedule because he had a permanent physical impairment. The Board agreed with the EEOC's cowas a "qualified handicapped" person and that the agency failed to make reasonable accommodatdid not consider whether the mail handler position could be modified or otherwise restructuredunnecessary to address whether reassignment was a reasonable accommodation. Although the issue, the Board concluded that the evidence adequately supported a finding that the agency attempt reasonable accommodation by means other than reassignment. 

Handicap Discrimination -- In Click v. Department of Health and Human Services, PH0351811

No. 03820132, the Board agreed with the conclusion of the EEOC that the agency's reduction-inagainst Click, a GS-2 Clerk, was improperly motivated by a discriminatory animus toward Click's ha

In addition to adjudicating the mixed cases remanded to the Board by the EEOC pursuant to 5 Board adjudicated several hundred mixed cases during fiscal year 1984 by initial decisions issued 

and by Board decisions on petitions for review of initial decisions. 

The Board continues to maintain an effective working relationship with the EEOC throughthe Boardrelationship was instrumental in resolving several procedural and substantive issues relating to mix
E. Litigation 

The Board's litigation program accelerated rapidly during this fiscal year as a result of landmark 

Court of Appeals for the Federal Circuit. In January, the court ruled for the Board in Hopkins v. D

725 F.2d 1368 (1984). The court held that the Board, not the employing agency, is the respondedecides on jurisdictional or other threshold issues. In June, the court held in Peterson v. DepartF.2d 1020 (1984), that the Board is the proper respondent in attorney fee cases. As a result of Board represented itself in some 225 additional cases in the Federal Circuit. 

Tight organization and planning enabled the Board to absorb the large increase in the litigat

significant increases in funding or staff. New litigation processing procedures and model motiodocuments were developed. 

In other areas of litigation, the Board successfully responded to the first attempt by the 

Management to obtain Federal Circuit review of a final Board decision. OPM is the only Federstatutory authority to seek judicial review of a Board decision. In Devine v. Portlock, Fed. Cir. No

review of a "mixed" case involving issues of discrimination, over which the Federal Circuit lacked jOPM initially contended that the case did not involve issues of discrimination. Following the filing OPM withdrew its appeal. 

The year also saw the Supreme Court 

grant the first petition for certiorari in a Board case. The Court agreed to hear Linhahl v. Office of Personnel 

Management, 718 F.2d 391 (Fed. Cir. 1983), 52 U.S.L.W. 3906 (June 19, 1984), a case in which the Federal Circuit disagreed with the Board's position on disability retirement issues. The Supreme Court's decision upheld the position taken by the Board in the Federal Circuit, that limited judicial review of the Board's disability retirement decisions is available and that the Federal Circuit has jurisdiction to review such decisions under 5 U.S.C. § 7703(b)(1). 
The number of court cases that the Board monitored in 1984 rose by about 50 percent, going f

Through monitoring, the Board keeps abreast of issues in cases it has decided but in which it is not 

F. Regulation Review 

Pursuant to 5 U.S.C. § 1205(c), the Board is required to review OPM rules and regulations and 

in order to prevent the commission of prohibited personnel practices. In fiscal year 1984, the Boarule that excluded from agency grievance systems disputes concerning "career ladder" promotions

HQ12058110067, the Board held that OPM violated section 1205(e) by expanding the scope of gbeyond those contained in the personnel regulations without following the requirements of the AdmAct. 
VII. Work of the Office of Merit Systems Review and S

The Board is required by law to conduct special studies to determine if the merit system 

protected, to review the significant actions of OPM, and to report its findings to the President and of Merit Systems Review and Studies (MSRS) has responsibility for performing these functions. 

In addition to conducting survey research, the MSRS research agenda includes activities s

seminars and on-site system reviews at selected agencies. In 1984 MSRS prepared a number of m

A. The 1984 Report on the Senior Executive Service This report analyzed the SES from the perspective of both the current and the retired or resigned 

determine if the program's essential purposes had been effectively achieved in the 5-year plementation. The report analyzed data gathered from two surveys conducted by MSRS duPrinciples Survey, and an SES Telephone Survey that contacted career executives who had eithfrom Government. 

B. Blowing the Whistle in the Federal Government: a Comparative Analysis of 1980 a

Findings 

This report conveys the results of a 1982 survey of Federal employees regarding their knowledgabuse affecting their agencies and whether they were able tc report such activities free from recompares these results with similar data gained in a 1980 MSPB survey. C. Significant Actions of the Office of Personnel Management: a Labor-Management DThis monograph is a summary of a roundtable discussion sponsored by MSRS on November 3, 1officials from the National Treasury Employees Union and the National Federation of Federal 

panelists and responded to questions from members of the Federal personnel community asking three most significant accomplishments of OPM in 1982 and 1983, and the three priority actio

should take to improve the merit system. D. Significant Actions of the Office of Personnel Management During 1983 This statutory report examined programs and policies initiated by OPM during 1983, and some redetermine whether or not they resulted in the promotion of merit principles and the prevention opractices. 
Information for this report was derived from several sources: written comments in response to 

requests sent to OPM's Director and to agency heads at the 21 largest Federal departments and ifollow-up interviews conducted with agency officials; OPM briefings held with the MSRS study programs analyzed in the report; reviews of studies by the General Accounting Office, OPM, mission, as well as other public and private research organizations; responses of 7,861 Fedemployees to a nationwide MSRS "Merit Principles Survey;" and responses to a nationwide OPAttitude Survey." 
U.S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, D.C. 20419