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Foreword

In accordance with section 1206 of Title 5, United States Code (U.S.C.), the U.S. Merit Systems 

Protection Board (MSPB) submits this Annual Report (AR) on its significant actions during fiscal 

year (FY) 2019.

We invite customers and stakeholders to send comments to improve MSPB’s ARs to:

DeeAnn Batten, Ph.D.

Performance Improvement Officer (PIO)

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

Email: mspb@mspb.gov (to the attention of the PIO)

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2019 program performance results (as required under the 

Government Performance and Results Act Modernization Act of 2010 (GPRAMA)) is available in 

the Annual Performance Report and Annual Performance Plan (APR-APP) for FY 2019-2021. 

Financial accountability and audit information is included in MSPB’s Annual Financial Report (AFR)

for FY 2019. MSPB’s ARs, AFRs, APR-APPs, and Strategic Plans (SPs) are posted on the Agency 

Plans and Reports page on MSPB’s website (www.mspb.gov) when they are released. 

Go to www.mspb.gov to learn more about MSPB’s work, sign up for MSPB’s adjudication or 

studies listservs, or follow us on Twitter @USMSPB.
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v Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table of Contents

 Page

Message from the Acting Chief Executive and Administrative Officer ........................1

Introduction................................................................................................................... 3

About MSPB.....................................................................................................................................................................3

MSPB’s Mission and Vision...........................................................................................................................................3

Board Members................................................................................................................................................................4

Board Quorum and Status of Board Member Nominations ...................................................................................4

MSPB Offices and Their Functions.............................................................................................................................5

MSPB Organizational Chart ..........................................................................................................................................6

Fiscal Year 2019 in Review ............................................................................................ 7

Adjudication......................................................................................................................................................................7

Merit Systems Studies......................................................................................................................................................7

The Significant Actions of the Office of Personnel Management..........................................................................7

Outreach, Merit Systems Education, and References to MSPB’s Work................................................................7

International Activities....................................................................................................................................................8

Legislative and Congressional Relations Activity .......................................................................................................8

Internal Management Challenges and External Factors.........................................................................................10

Case Processing Statistics for FY 2019 .........................................................................13

Summary of Cases Decided by MSPB .......................................................................................................................13

Cases Processed in the Regional and Field Offices.................................................................................................14

Cases Processed at Headquarters................................................................................................................................21

Significant Court Opinions Issued in FY 2019............................................................ 23

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit ...........................................23

Significant Opinions in Whistleblower Appeals Issued by Other Circuit Courts..............................................28

Summary of Merit Systems Studies Activity in FY 2019 ............................................. 29

Publications Issued ........................................................................................................................................................29

Other Studies Activity ...................................................................................................................................................30

Significant Actions of the U.S. Office of Personnel Management...............................31

OPM Leadership and Context.....................................................................................................................................31

Agency Human Capital Programs...............................................................................................................................32

Hiring ...............................................................................................................................................................................33

Workforce Shaping........................................................................................................................................................37

Work-Life Programs......................................................................................................................................................39

Employee Performance Management and Rewards................................................................................................40

Financial Summary...................................................................................................... 43

List of Abbreviations and Acronyms ........................................................................... 45
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1 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2019 ANNUAL REPORT

MESSAGE FROM THE ACTING CHIEF EXECUTIVE AND ADMINISTRATIVE 

OFFICER

I am pleased to submit the U.S. Merit Systems Protection Board (MSPB’s) Annual Report for FY 2019. 

Having reached the end of his term on February 28, 2018, Vice Chairman and Acting Chairman Mark 

Robbins’ carry-over year expired on February 28, 2019, leading to the first time in MSPB history 

without any Board members. Pursuant to MSPB’s Continuity of Operations Plan, I became MSPB’s 

acting chief executive and administrative officer on March 1.

During this unprecedented period, MSPB faced many of the same uncertainties it has since losing a 

Board quorum in January 2017. MSPB had already been unable issue decisions in petitions for review 

(PFRs) and other cases at headquarters (HQ), such as enforcing MSBP decisions; the backlog of these 

cases at the time of this report’s publication numbers 2,529. MSPB had also already been unable 

publish reports of merit systems studies or promulgate substantive regulations, such as in response to 

statutory changes by Congress. With the departure of Acting Chairman Robbins, MSPB lost the 

authority to issue whistleblower stays when requested by the Office of Special Counsel (OSC).

Nevertheless, in most areas MSPB’s workload has remained the same. MSPB’s administrative judges 

(AJs) continue to review cases, issuing 5,112 decisions in FY 2019. MSPB staff continue to prepare 

draft decisions for Board member consideration in response to the hundreds of PFRs filed in FY 2019. 

Some have chosen to appeal in federal court rather than through the PFR process, and MSPB has 

continued to regularly appear in court to explain its processes. MSPB has also continued to issue 

research briefs and regular newsletters. On top of this, MSPB has used this time to re-evaluate its 

procedures and regulations, looking for improvements.

While MSPB employees have been remarkably focused in continuing the agency’s work despite the 

challenges, there is no question we look forward to the arrival of new Board members. Three nominees 

have been favorably recommended in committee and are awaiting consideration on the Senate’s 

Executive Calendar, including a new nominee this year, B. Chad Bungard, who previously served as 

MSPB’s General Counsel from 2006 to 2010. In order to fully perform its mission and successfully face 

new challenges that lie ahead, MSPB needs a Board quorum.

The merit system plays a key role in the effective functioning of the Federal Government. When 

properly applied, merit system principles ensure taxpayers receive the benefit of their tax dollars being 

used to employ the most qualified employees, who can in turn provide the work and the customer 

service taxpayers deserve. This is something all Americans have a stake in. Applying the merit system 

principles and conscientiously avoiding prohibited personnel practices also ensures fair treatment of 

whistleblowers, who can further help identify and prevent waste, fraud, abuse, and mismanagement. 

MSPB employees have dedicated themselves to advancing this mission, and it is a privilege to serve 

alongside them.

Tristan L. Leavitt

General Counsel

January 31, 2020
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3 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

INTRODUCTION

This MSPB Annual Report for FY 2019 includes adjudication case processing statistics for the 

regional and field offices, summaries of court opinions relevant to MSPB’s work, summaries of 

MSPB’s merit systems studies activity, and summaries of the significant actions of the Office of 

Personnel Management (OPM).

1 The report also contains summaries of MSPB’s financial status, 

outreach and education activities, legislative and congressional relations activities, and international 

activities. In addition, the report includes a brief review of the internal management challenges and 

external factors that affect MSPB’s work to provide a context for the other information in the 

report. MSPB’s annual reports usually contain HQ case processing statistics and summaries of 

significant MSPB Board decisions. This information is not provided in this report because, due to 

the lack of quorum, there were no HQ decisions on MSPB appeals issued in FY 2019. 

About MSPB

MSPB was created by the Civil Service Reform Act (CSRA) to carry on the adjudication functions of 

the Civil Service Commission, thus providing independent review and due process to employees and 

agencies. The CSRA authorized MSPB to develop its adjudicatory processes and procedures, issue 

subpoenas, call witnesses to testify at hearings, and enforce compliance with final MSPB decisions.

MSPB also was granted broad authority to conduct independent, objective studies of the Federal merit 

systems and Federal human capital management issues. In addition, MSPB was given the authority and 

responsibility to review and act on OPM’s regulations, and to review and report on OPM’s significant 

actions.2 The CSRA also codified for the first time the values of the Federal merit systems as the merit 

system principles (MSPs). The Act also proscribed, as contrary to MSPs, specific actions and practices 

as the prohibited personnel practices (PPPs).

3

Since the enactment of the CSRA, Congress has given 

MSPB jurisdiction to hear cases and complaints filed under a variety of other laws.4 More information 

about MSPB’s jurisdiction can be found in the agency SP located on www.mspb.gov. 

MSPB’s Mission and Vision

Mission 

To protect the merit system principles and promote an effective Federal workforce

free of prohibited personnel practices.

Vision

A highly qualified, diverse Federal workforce that is fairly and effectively managed, 

providing excellent service to the American people.

 

1 The review of OPM significant actions conducted under 5 U.S.C. § 1206 is not, and should not be construed as, an advisory opinion (which is 

prohibited under 5 U.S.C. § 1204(h)).

2 Pursuant to 5 U.S.C. § 1204(f), MSPB may, on its own motion, or at the request of other parties, review and declare invalid OPM regulations if such 

regulations, or the implementation of such regulations, would require an employee to commit a prohibited personnel practice. Pursuant to 5 U.S.C. § 

1206, MSPB also is responsible for annually reviewing and reporting on OPM’s significant actions.

3 Title 5 U.S.C. § 2301 and § 2302, respectively.

4 Including the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq.; the Veterans 

Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act of 1989 (WPA), Pub L. 101-12, 103 Stat. 

16; the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 112-199; and other laws listed in this and previous ARs.
4 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Board Members

The bipartisan Board consists of the Chairman, Vice Chairman, and Board Member, with no more 

than two of its three members from the same political party. Board members are appointed by the 

President, confirmed by the Senate, and serve overlapping, nonrenewable 7-year terms. 

MARK A. ROBBINS

Vice Chairman and acting Chairman, January 2017 to March 2019

Member, May 2012 to January 2017

Mark A. Robbins was nominated by President Barack Obama on 

December 5, 2011 to serve as a Member of the Merit Systems Protection 

Board for a term of seven years, and was confirmed by the U.S. Senate on 

April 26, 2012. On January 23, 2017, President Donald Trump designated 

Mr. Robbins Vice Chairman. Pending re-establishment of a Board quorum, 

Mr. Robbins performed the functions vested by Title 5 in the Office 

of Chairman for the remainder of his Board service.

Mr. Robbins’ term ended on March 1, 2018 following which he served a 

one-year statutory carryover year. On December 20, 2018, President Trump issued a memorandum 

directing Mr. Robbins to serve concurrently as OPM General Counsel, a position he held from 2001 

to 2006. 

At the time of his nomination, Mr. Robbins was the General Counsel of the U.S. Election 

Assistance Commission. He previously served as a Senior Rule of Law Advisor for the State 

Department in Babil Province, Iraq, where he was awarded the U.S. Army’s Commander’s Award 

for Civilian Service. Mr. Robbins also served as Executive Director of the White House Privacy and 

Civil Liberties Oversight Board between 2006 and 2008. Prior to his initial service at OPM, he 

worked in private practice as a litigation attorney in Los Angeles, California between 1988 and 2000, 

and in the White House Office of Presidential Personnel from 1984 to 1988. Mr. Robbins began his 

career as a Legislative Assistant to two Los Angeles area Members of Congress, covering, among 

other things, civil service and Federal human resources management issues. 

Mr. Robbins earned his undergraduate and law degrees from George Washington University. He is a 

member of the California and District of Columbia bars. In recognition of his extensive professional 

involvement and continued leadership in public administration, in 2013 Mr. Robbins was elected as 

a Fellow of the National Academy of Public Administration. 

Board Quorum and Status of Board Member Nominations

On January 16, 2019, the President re-nominated Dennis D. Kirk to be a Board Member and 

Chairman and Julia Akins Clark to be a Board Member. On February 13, 2019, the Senate 

Committee on Homeland Security and Governmental Affairs voted to advance those nominations 

to the full Senate. On April 30, 2019, the President nominated B. Chad Bungard to fill the third 

vacancy on the Board as a Member with the designation of Vice Chairman. The Committee voted in 

favor of his nomination on June 19, 2019. If confirmed, Ms. Clark’s term would expire March 1, 

2021, Mr. Kirk’s term would expire March 1, 2023, and Mr. Bungard’s term would expire on March 

1, 2025. All three nominations are pending a vote by the full Senate.
5 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

MSPB Offices and Their Functions

MSPB is headquartered in Washington, D.C. and has six regional offices (ROs) and two field offices 

(FOs) located throughout the United States. For FY 2019 the agency requested funding for 235 fulltime equivalents to conduct and support its statutory duties. 

The Board members adjudicate the cases brought to the Board. The Chairman, by statute, is the 

chief executive and administrative officer. The Director of the Office of Equal Employment 

Opportunity (EEO) reports directly to the Chairman; otherwise, the directors of the offices described 

below report to the Chairman through the Executive Director.

The Office of the Administrative Law Judge (ALJ) adjudicates and issues initial decisions in 

corrective and disciplinary action complaints (including Hatch Act complaints) brought by the 

Special Counsel, proposed agency actions against ALJs, MSPB employee appeals, and other cases 

assigned by MSPB. In FY 2019, the functions of this office were performed under interagency 

agreements by ALJs at the Federal Trade Commission (FTC) and the U.S. Coast Guard.

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

Board to consider for cases in which a party files a petition for review (PFR) of an initial decision 

issued by an AJ and in most other cases to be decided by the Board. The office prepares proposed 

decisions on interlocutory appeals of AJs’ rulings, makes recommendations on reopening cases on 

the Board’s own motion, and provides research, policy memoranda, and advice on legal issues to the 

Board.

The Office of the Clerk of the Board receives and processes cases filed at MSPB HQ, rules on 

certain procedural matters, and issues Board decisions and orders. It serves as MSPB’s public 

information center, coordinates media relations, operates MSPB’s library and on-line information

services, and administers the Freedom of Information Act and Privacy Act programs. It also certifies 

official records to the courts and Federal administrative agencies, and manages MSPB’s records 

systems, website content, and the Government in the Sunshine Act program.

The Office of Equal Employment Opportunity plans, implements, and evaluates MSPB’s EEO 

programs. It processes complaints of alleged discrimination brought by agency employees and 

provides advice and assistance on affirmative employment initiatives to MSPB’s managers and 

supervisors.

The Office of Financial and Administrative Management administers the budget, accounting, 

travel, time and attendance, human resources (HR), procurement, property management, physical 

security, and general services functions of MSPB. It develops and coordinates internal management 

programs, including review of agency internal controls. It also administers the agency’s cross-agency 

servicing agreements with the Department of Agriculture’s (USDA) National Finance Center (NFC) 

for payroll services, the Department of the Treasury’s Bureau of Fiscal Service (BFS) for accounting 

services, and USDA’s Animal and Plant Health Inspection Service (APHIS) for HR services.

The Office of the General Counsel, as legal counsel to MSPB, advises the Board and MSPB 

offices on a wide range of legal matters arising from day-to-day operations. The office represents 

MSPB in litigation; coordinates the review of OPM rules and regulations; prepares proposed 

decisions for the Board to enforce a final MSPB decision or order, in response to requests to review 

OPM regulations, and for other assigned cases; conducts the agency’s PFR settlement program; and 

coordinates the agency’s legislative policy and congressional relations functions. The office also 
6 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

drafts regulations, administers MSPB’s ethics program, performs the inspector general function, and 

plans and directs audits and investigations. 

The Office of Information Resources Management develops, implements, and maintains 

MSPB’s automated information technology systems to help the agency manage its caseload 

efficiently and carry out its administrative and research responsibilities.

The Office of Policy and Evaluation (OPE) carries out MSPB’s statutory responsibility to conduct 

special studies of the civil service and other Federal merit systems. Reports of these studies are sent to 

the president and the Congress and are distributed to a national audience. The office provides 

information and advice to Federal agencies on issues that have been the subject of MSPB studies. The 

office also carries out MSPB’s statutory responsibility to review and report on the significant actions 

of OPM. The office conducts special projects and program evaluations for the agency and is 

responsible for coordinating MSPB’s performance planning and reporting functions required by 

GPRAMA.

The Office of Regional Operations (ORO) oversees the agency’s six regional offices and two field 

offices, which receive and process initial appeals and related cases. It also manages MSPB’s 

Mediation Appeals Program. AJs in the regional and field offices are responsible for adjudicating 

assigned cases and for issuing fair, well-reasoned, and timely initial decisions.

MSPB Organizational Chart

CHAIRMAN MEMBER

General

Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices

Atlanta, Chicago,

Dallas,

Philadelphia,

Oakland, and

Washington, DC

VICE CHAIRMAN

Field Offices

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

HR Management services are provided by USDA’s APHIS Business Services. Payroll services are provided by USDA’s NFC.

Accounting services are provided by the Department of the Treasury’s BFS. In FY 2019, ALJ functions were performed under 

interagency agreements by ALJs employed by the FTC and the U.S. Coast Guard.

U.S. Merit Systems Protection Board

Performance 

Improvement 

Officer
7 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

FISCAL YEAR 2019 IN REVIEW

Adjudication

MSPB has lacked a quorum of Board members since January 2017, thus preventing MSPB from 

issuing final decisions in PFRs and other cases at HQ, including decisions in enforcement cases and 

in cases requesting review of OPM regulations. Therefore, this AR does not contain summaries of 

significant decisions issued by the Board, or case processing statistics for PFRs issued by HQ. 

In FY 2019, MSPB processed 5,112 cases in the regional and field offices, including addendum and 

stay requests. MSPB’s AJs in the regional and field offices issued decisions in 4,893 initial appeals. 

ALJs issued six decisions. MSPB’s Acting Chairman, Mark Robbins, granted two stay requests

before his departure in March 2019, but, as stated earlier, no decisions on PFRs or other cases were 

issued from HQ. As of the end of FY 2019, MSPB had 2,378 PFRs pending at HQ. Statistical 

information on MSPB’s case processing activity for the ROs/FOs is provided in the Case 

Processing Statistics for FY 2019 section of this report. In accordance with the Whistleblower 

Protection Enhancement Act of 2012 (WPEA), information about FY 2019 whistleblower cases will 

be available in MSPB’s APR-APP for FY 2019-2021. The APR-APP is available on MSPB’s website 

at www.mspb.gov.

As a service to our stakeholders, MSPB is also providing summaries of significant opinions relevant 

to the Board’s work that were issued in FY 2019 by the U.S. Court of Appeals for the Federal 

Circuit (CAFC) and other appellate courts. Those summaries are provided in the Significant 

Opinions Issued by the Courts section of this report. The opinions cover topics such as adverse 

actions, attorney fees, constructive action, due process, and the Uniformed Services Employment 

and Reemployment Rights Act of 1994 (USERRA). Summaries of opinions on whistleblower issues 

issued by the CAFC and by the U.S. Court of Appeals for the First Circuit are also included.

Merit Systems Studies

In FY 2019, MSPB did not publish any reports of merit systems studies due to the lack of quorum. 

MSPB’s studies program released three editions of its Issues of Merit (IoM) newsletter. It also released 

four articles or briefs on probationary practices, PPPs, unacceptable employee performance, and 

emotionally laborious work. Summaries of FY 2019 IoM newsletters, research and perspective briefs, 

and other articles are contained in the Summary of Merit Systems Studies Activity section of this 

report.

The Significant Actions of the Office of Personnel Management

In accordance with statute, MSPB’s annual report must contain a review of OPM’s significant actions 

and an assessment of the degree to which the actions support merit and prevent PPPs. The FY 2019 

review includes OPM’s significant actions in relation to agency human capital programs, hiring, 

workforce shaping, work-life programs, and employee performance management and rewards. More 

information about MSPB’s review of significant OPM actions is included in that section of this report.

Outreach, Merit Systems Education, and References to MSPB’s Work 

MSPB’s education and outreach efforts are designed to enhance the understanding of the concept of 

merit, ensure that MSPs are applied consistently throughout the Government, reduce the likelihood 
8 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

of PPPs, and promote stronger merit-based management practices. MSPB outreach also promotes 

better operation and understanding of the Federal merit system disciplinary and appeals process by 

sharing information about MSPB processes and its legal precedents. All of these efforts, in turn, help

to improve employee and organizational performance, improve service to the American people, and 

provide value to the taxpayer.

In FY 2019, MSPB staff conducted over 130 outreach events with a variety of customers and 

stakeholders. MSPB staff presented at the Federal Dispute Resolution conference, the American 

Society for Public Administration’s annual conference, the Federal Circuit Bar Association’s

MSPB Summit, the International Personnel Assessment Council’s annual conference, the Equal 

Employment Opportunity Commission’s (EEOC) Examining Conflicts in Employment Law 

conference, and the Chicago-Kent School of Law’s Federal Sector Labor Relations and Labor 

Law Conference.

MSPB’s adjudication and studies work, and other activities involving MSPB, were cited over 700

times in at least 129 different print and online sources. Significant citations include a letter from the 

House Committee on Veterans’ Affairs to the Secretary of the Department of Veterans Affairs

(VA); a Congressional Research Service (CRS) Report entitled Merit Systems Protection Board (MSPB): 

A Legal Overview; and from the MITRE Corporation’s Report: Symposium on the Federal Workforce for the 

21st Century. More information about references to MSPB’s work and its outreach and education 

activities can be found in the APR-APP for FY 2019-2021. 

International Activities

During FY 2019, MSPB hosted an official from Japan to educate him on U.S. Federal civil service

policy and practice in specific areas, including hiring of individuals with disabilities, bullying and 

harassment in the workplace and agency preventive or response measures, and employment of older 

workers. MSPB also received visitors from Armenia and Brazil to discuss the MSPs, PPPs, current 

issues, new initiatives, and MSPB’s jurisdiction and decision making process. MSPB developed a 

month-long professional fellowship program funded by the U.S. State Department, in which the AJ 

assigned to ORO hosted and supervised a visiting government official from the Republic of 

Armenia for discussions with various Board offices and employees regarding MSPB law and 

procedures for safeguarding the merit principles in the U.S. Federal Government. The AJ 

subsequently participated in a corresponding outbound project, spending ten days in Armenia, 

conducting presentations and exchanging ideas with government officials, academics, and 

representatives of non-profit organizations about fostering a merit-based civil service.

Legislative and Congressional Relations Activity

MSPB staff monitored and analyzed several bills that might affect MSPB’s jurisdiction and the 

agency’s adjudication of appeals. Brief descriptions of some of these bills are provided here.

S. 396 and H.R. 1235.

5 These bills would have extended the holdover period for an MSPB Board 

member for one additional year under limited circumstances. The House bill, introduced as the 

MSPB Temporary Term Extension Act, would have applied only to then-Vice Chairman Mark 

Robbins and would not have applied to future Board members. The House passed H.R. 1235 on 

 

5 S. 396, 116th Cong. (2019), available at https://www.congress.gov/116/bills/s396/BILLS-116s396is.pdf; MSPB Temporary Term Extension Act, 

H.R. 1235, 116th Cong. (2019), available at https://www.congress.gov/116/bills/hr1235/BILLS-116hr1235rfs.pdf.
9 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

February 25, 2019, while the Senate bill remains before the Senate Committee on Homeland 

Security and Governmental Affairs. 

Interim Stay Authority to Protect Whistleblowers Act (H.R. 2530).

6 This bill would (1) provide 

authority to a single Board member to exercise authority regarding stays of personnel actions in the 

absence of a Board quorum,7and (2) provide authority to MSPB’s General Counsel to exercise 

authority regarding stays of personnel actions in the absence of any Senate-confirmed Board 

members at the agency. The House Committee on Oversight and Reform reported H.R. 2530 to the 

House floor on June 12, 2019. It was included in the version of National Defense Authorization Act 

(NDAA) for FY 2020 passed by the House on July 12, 2019,

8 but was removed in conference from 

the version of the NDAA that was ultimately signed into law on December 20, 2019.

9

Merit Systems Protection Board Reauthorization Act of 2019 (H.R. 3357).10 This bill would 

reauthorize MSPB for a period of five years (FY 2020-2024). It would also: (1) require the MSPB to 

establish and collect filing fees from appellants; (2) permit the Board to grant motions for summary 

judgment; (3) limit the Board’s mitigation authority; (4) require that an agency’s action be sustained if 

supported by substantial evidence (a change to the current standard, which requires that an action 

based on unacceptable performance be supported by substantial evidence but an action based on 

misconduct be supported by preponderant evidence); (5) bar appeals from employees who have 

been placed on emergency furlough; (6) permit reappointment of Board members; and (7) amend 

the VA Accountability and Whistleblower Protection Act of 2017, 38 U.S.C. § 714, to clarify that 

appeals under that statute are to MSPB rather than to an MSPB AJ.

Modern Employment Reform, Improvement and Transformation (MERIT) Act of 2019

(H.R. 334811 and S. 1898

12). This bill would make a number of changes to Federal personnel law. 

Those changes that would impact the MSPB’s mission include the: (1) elimination of MSPB appeal 

rights for emergency furloughs which are defined as a furlough resulting from a lapse in 

appropriations; (2) creation of MSPB appeal rights regarding an agency’s decision to reduce the 

annuity of an employee who is convicted of a felony for which an adverse action is or would have 

been taken; (3) creation of MSPB appeal rights regarding an agency’s order directing an employee or 

former employee to repay all or a portion of an award or bonus when the agency head has 

determined that the employee or former employee has engaged in misconduct or unsatisfactory 

performance prior to the payment of the award or bonus; and (4) extension of the probationary 

period for Senior Executive Service (SES) and competitive service employees to two years. For 

competitive service employees, the bill would also require that an affirmative determination be made 

if the employee is to be retained beyond completion of the probationary period, which affords 

“employee” status to the retained employee that provides appeal rights should an adverse action be 

taken in the future. 

Other Congressional Activity. MSPB staff conducted two briefings for congressional staff during 

this fiscal year. In addition to the annual House and Senate Appropriations Committee staff briefing 

on the agency’s FY 2020 budget request, MSPB staff briefed staff from the House Committee on 

 

6 116th Cong. (2019), available at https://www.congress.gov/116/bills/hr2530/BILLS-116hr2530ih.pdf.

7A single Board member may grant a stay or extend a stay in the absence of a quorum under 5 U.S.C. § 1214(b)(1)(B).

8 H.R. 2500, 116th Cong. § 1115 (2019).

9 See National Defense Authorization Act for FY 2020, Pub. L. No. 116-92, 133 Stat. 1198.

10 116th Cong. (2019), available at https://www.congress.gov/116/bills/hr3357/BILLS-116hr3357ih.pdf.

11 116th Cong. (2019), available at https://www.congress.gov/116/bills/hr3348/BILLS-116hr3348ih.pdf.

12 116th Cong. (2019), available at https://www.congress.gov/116/bills/s1898/BILLS-116s1898is.pdf. 
10 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Oversight and Reform, the House Committee on Veterans Affairs, and the Senate Committee on 

Homeland Security and Governmental Affairs. Briefing topics in FY 2019 included MSPB’s Merit 

Principles Survey (MPS), its research into sexual harassment in the Federal Government, MSPB’s 

stay authority, and new disciplinary provisions for supervisors committing retaliation, codified at 5 

U.S.C. § 7515 by the NDAA for FY 2018.

13

 

On February 28, 2019, the House Subcommittee on Government Operations held an oversight 

hearing titled Effects of Vacancies at the Merit Systems Protection Board. The areas of focus included: 

(1) the impact of Board vacancies on MSPB operations; (2) the consequences of having no Board 

members; and (3) any impact on the political independence of the MSPB in light of the acting MSPB 

Chairman’s dual appointments as MSPB Board member and OPM General Counsel. Acting 

Chairman Mark Robbins testified at the hearing. 

On July 23, 2019, the House Committee on Veterans’ Affairs Subcommittee on Oversight and 

Investigations held a hearing titled Learning from Whistleblowers at the Department of Veterans Affairs. 

Tristan Leavitt, MSPB’s General Counsel and Acting Chief Executive and Administrative Officer, 

testified at the hearing regarding MSPB’s role in adjudicating whistleblower appeals.

Internal Management Challenges and External Factors

The most significant internal management challenge currently facing MSPB is the lack of quorum of 

Board members. Other significant internal challenges that could affect MSPB’s ability to carry out its 

mission include other human capital issues and information technology (IT) stability, security, and 

modernization. The most critical external factors are changes in law and jurisdiction, and 

Governmentwide reform. Limited information about these external factors and internal management 

challenges is provided here as context for the other information contained in the report. Detailed 

information about MSPB’s external factors and internal management challenges is available in MSPB’s

APR-APP for FY 2019-2021.

Lack of Board Quorum. MSPB has been without a quorum of Board members since January 8, 

2017. Additionally, MSPB has been without any Presidentially-appointed Senate-confirmed Board 

members since March 1, 2019. The lack of quorum has led to a backlog of PFRs and other cases at 

HQ awaiting Board decisions. This backlog totaled 2,378 cases at the end of September 2019, and it 

is growing every day. The lack of quorum also prevents MSPB from releasing reports of merit 

systems studies and promulgating certain regulations to accompany congressional changes in MSPB’s

jurisdiction or processes. The status of Board nominations appears on page four (4) of this 

document.

Other Human Capital Challenges. In addition to the lack of quorum, MSPB is affected by the 

retirement eligibility of its workforce, the Supreme Court’s decision in Lucia, et al. v. Securities and 

Exchange Commission (138 S. Ct. 2044 (2018)), and the May 2018 Executive Orders (EOs) 13836, 

13837, and 13839.

14 Over 35 percent of all MSPB employees, including over 47 percent of 

permanent AJs and adjudication managers involved with processing initial appeals, are eligible to 

retire between the end of FY 2019 and the end of 2022. It is also challenging to ensure continued 

expertise when employees in critical, one-deep positions depart the agency through retirement or 

 

13 Pub. L. No. 115-91 §1097(e) (2017).

14 Exec. Order No. 13,836, Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining, 83 Fed. Reg. 

25,329 (May 25, 2018); Exec. Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use, 83 Fed. 

Reg. 25,335 (May 25, 2018); and Exec. Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit 

Systems Principles, 83 Fed. Reg. 25,343 (May 25, 2018).
11 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

transfer. Lucia has the potential to affect MSPB from both an adjudicatory and operational 

standpoint. MSPB hears appeals of adverse actions taken against ALJs under 5 U.S.C. § 7521, and 

MSPB case law regarding ALJs may be affected by Lucia. In addition, some parties have raised Lucia

challenges regarding MSPB’s AJs. If Lucia challenges regarding MSPB AJs are sustained, appellants 

who raised successful challenges may be entitled to new proceedings before an officer appointed in 

conformity with the Appointments Clause of the Constitution. The EOs require MSPB to

renegotiate with its professional association provisions of the collective bargaining agreement (CBA) 

that are inconsistent with the requirements and priorities set forth in the orders. MSPB also must 

conform its non-CBA performance management guidance and practice. 

IT Infrastructure Stability and Modernization. MSPB is focused on ensuring it has the IT 

infrastructure and the IT and information services expertise to execute its mission and modernize its 

systems, including implementing 100 percent electronic adjudication and obtaining a viable, secure, 

cloud-based survey capability. In FY 2019, we selected a contractor to design and implement the new 

core business applications and began configuration of the e-Appeal and initial appeals processing 

components. We expect to complete implementation of core business applications and related IT 

modernization projects by the end of calendar year 2021. In FY 2019, MSPB procured a secure, 

FedRAMP certified survey application to support its merit systems studies program and its internal 

and external customer surveys. The next step includes finalizing the requirements to use the 

application for Governmentwide surveys.

Changes in Law, Jurisdiction, and Process. Several statutory changes have occurred in the last few 

years. However, we have been unable to promulgate substantive adjudicatory regulations in response 

to these changes in law due to the lack of quorum. No new legislation was enacted in FY 2019 that 

impacts MSPB’s adjudicatory or studies functions. Information about the status of pending legislation 

affecting MSPB is available in the legislative and congressional activities section of this report. EO

13839 may significantly affect MSPB’s case processing due to its prohibition on agencies entering into 

“clean record” and other similar settlement agreements. The settlement rate dropped over 6 percent 

from FY 2017 compared to FY 2019 (53.36 percent compared to 47.02 percent, respectively). 

Reducing the percentage of cases that settle likely will increase the percentage of cases requiring a 

hearing, and adjudication is more complex now in general. EOs 13836 and 13837 could also lead to an

increase in case receipts and may result in fewer appellants who are represented by unions on appeal. 

Governmentwide Reform and Potential Budget Reductions Beyond FY 2018. In March 2019, 

the Office of Management and Budget (OMB) Published Celebrating One Year of Progress: The President’s 

Management Agenda Anniversary Report, which includes specific accomplishments in the year since the 

President’s Management Agency was published.15 In July 2019, OMB published One Year Update: 

Reform Plan and Reorganization Recommendations.

16 Agencies are already beginning to implement their 

respective reform plans. Certain actions that may be taken by agencies as part of these reform efforts 

are likely to have an effect on MSPB’s workload. For example, actions such as reductions in force

and certain retirement actions are appealable to MSPB. 

In addition to the possible impact on MSPB’s adjudication workload and complexity, changes in law 

are likely to require changes in MSPB procedures, and possibly the need for additional MSPB 

resources. Changes in law and Government reform also emphasize the importance of MSPB’s 

responsibility to conduct studies of Federal merit systems and review OPM’s significant actions to 

ensure that the Federal workforce continues to be managed in accordance with MSPs and free from 

 

15 Executive Office of the President of the United States, March 20, 2019, at https://www.performance.gov/PMA-celebrating-one-year-of-progress.

16 Executive Offices of the President of the United States, July 30, 2019, at https://www.performance.gov/one-year-update-reform-reorg.
12 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

PPPs. These changes increase the importance of MSPB’s responsibility to promote merit and educate 

employees, supervisors, managers, and leaders on the merit systems, MSPs, PPPs, and MSPB appellate 

procedures, processes, and case law. These outreach and educational functions improve workforce 

management over time and may reduce the time and cost of processing appeals for agencies,

appellants, and the Government as a whole.
13 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

CASE PROCESSING STATISTICS FOR FY 2019

Summary of Cases Decided by MSPB

Since January 8, 2017, MSPB has not had a quorum, which is required to issue final decisions on 

PFRs and other cases filed at HQ (except for actions taken on stay requests). Therefore, other than 

stay requests, there are no case processing statistics for HQ.

Table 1: FY 2019 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices 

 Appeals 4,893

 Addendum Cases1 190

 Stay Requests2 29

 TOTAL Cases Decided in RO/FOs 5,112 

 Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3 

6 

 Cases Decided by the Board 

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 0

 Petitions for Review (PFRs) - Addendum Cases 0

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Orders 0

 Reopenings 0

 Court Remands 0

 Compliance Referrals 0

 EEOC Non-concurrence Cases 0

 Arbitration Cases 0

 Subtotal - Appellate Jurisdiction 0 

 Original Jurisdiction4 2

 Interlocutory Appeals 0

 TOTAL Cases Decided by the Board 2 

 TOTAL Decisions (Board, ALJs, RO/FOs) 5,120 

1 Includes 43 requests for attorney fees, one (1) board remand case, 109 compliance cases, 20 court remand cases, 12 requests for 

compensatory damages (discrimination cases only), and five (5) requests for consequential damages.

2 Includes 21 stay requests in whistleblower cases and eight (8) in non-whistleblower cases.

3 Initial Decisions by ALJ. Case type breakdown: one (1) Disciplinary Action - Hatch Act case, three (3) Actions Against SES cases, and 

two (2) Actions Against ALJs.

4 Final board decisions: two (2) requests for stay brought by OSC. 
14 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Type of Case # # % # % # % # %

Adverse Action by Agency 2,092 1,132 54.11 960 45.89 488 50.83 472 49.17

Termination of Probationers 388 370 95.36 18 4.64 13 72.22 5 27.78

Reduction in Force 14 10 71.43 4 28.57 2 50.00 2 50.00

Performance 113 41 36.28 72 63.72 37 51.39 35 48.61

Acceptable Level of 

Competence (ALOC)3

29 14 48.28 15 51.72 10 66.67 5 33.33

Suitability 61 28 45.90 33 54.10 22 66.67 11 33.33

CSRS Retirement: 4Legal 240 149 62.08 91 37.92 6 6.59 85 93.41

CSRS Retirement: Disability 6 4 66.67 2 33.33 0 0.00 2 100.00

CSRS Retirement: 

Overpayment

62 28 45.16 34 54.84 23 67.65 11 32.35

FERS Retirement:4Legal 183 127 69.40 56 30.60 5 8.93 51 91.07

FERS Retirement: Disability 223 166 74.44 57 25.56 0 0.00 57 100.00

FERS Retirement: 

Overpayment

201 93 46.27 108 53.73 70 64.81 38 35.19

FERCCA4 16 12 75.00 4 25.00 0 0.00 4 100.00

Individual Right of Action 490 346 70.61 144 29.39 71 49.31 73 50.69

USERRA 123 54 43.90 69 56.10 40 57.97 29 42.03

VEOA5 90 51 56.67 39 43.33 9 23.08 30 76.92

Other6 562 541 96.26 21 3.74 16 76.19 5 23.81

Total 4,893 3,166 64.70 1,727 35.30 812 47.02 915 52.98 

1 Percent Dismissed and Not Dismissed are of the number Decided.

2 Percent Settled and Adjudicated are of the number Not Dismissed.

3 ALOC means an employee is effectively performing the duties and responsibilities of his or her assigned job, which warrants advancing the 

employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s performance is not at an ALOC, then the 

agency must under most circumstances, deny his or her within-grade increase.

4 Civil Service Retirement System (CSRS); Federal Employees Retirement System (FERS); and Federal Erroneous Retirement Coverage Corrections 

Act (FERCCA).

5 The Veterans Employment Opportunity Act of 1998 (VEOA).

6 “Other” appeals include Restoration to Duty (43), Miscellaneous (466), and additional types such as Reemployment Priority, Employment 

Practices, and others.
15 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Figure 1: Type of Appeals Decided in the Regional and Field Offices

Total Number of Appeals: 4,893

Note, some percentages display as “0” due to rounding.

Termination of 

Probationers (388)

8%

Reduction in Force (14)

0%

Performance (113)

2%

Acceptable Level of 

Competence (29)

1%

Suitability (61)

1%

CSRS Retirement: Legal (240)

5%

CSRS Retirement: Disability (6)

0%

CSRS Retiremant: 

Overayment (62)

1%

FERS Retirement: Legal 

(183)

4%

FERS Retirement: 

Disability (223)

5%

FERS Retirement: 

Overpayment (201)

4%

FERCCA: (16)

0%

Indivual Right of Action 

(490)

USERRA (123) 10%

3% VEOA (90)

2%

Other (562)

11%

Adverse Actions (2092)

43%
16 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Figure 2: Dispositions of Initial Appeals Not Dismissed 

by Regional/Field Offices

Total Number of Appeals that Were Not Dismissed: 1,727

Figure 3: Dispositions of Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 915 Appeals Adjudicated on the Merits

Appeal Settled 

(812) 47%

Action or Decision 

Upheld or Left 

Undisturbed (779)

45%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (106) 6%

Mitigated (21) 1% Other (9) 1%

Action or Decision 

Upheld or Left 

Undisturbed (779)

85%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (106)

12%

Mitigated (21) 2% Other (9) 1%
17 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table 3: Disposition of Appeals by Agency

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

 Agency # # % # % # % # %

Office of Personnel 

Management3

970 592 61.0 378 39.0 124 32.8 254 67.2

Department of Veterans Affairs 830 561 67.6 269 32.4 108 40.1 161 59.9

United States Postal Service 514 335 65.2 179 34.8 131 73.2 48 26.8

Department of the Army 443 295 66.6 148 33.4 79 53.4 69 46.6

Department of the Navy 327 222 67.9 105 32.1 62 59.0 43 41.0

Department of Homeland 

Security 278 185 66.5 93 33.5 37 39.8 56 60.2

Department of Defense 219 137 62.6 82 37.4 33 40.2 49 59.8

Department of the Air Force 216 144 66.7 72 33.3 39 54.2 33 45.8

Department of Justice 165 103 62.4 62 37.6 30 48.4 32 51.6

Department of the Treasury 130 81 62.3 49 37.7 21 42.9 28 57.1

Department of Health and 

Human Services 123 88 71.5 35 28.5 20 57.1 15 42.9

Department of Agriculture 102 53 52.0 49 48.0 21 42.9 28 57.1

Department of the Interior 95 53 55.8 42 44.2 30 71.4 12 28.6

Social Security Administration 84 61 72.6 23 27.4 8 34.8 15 65.2

Department of Transportation 78 51 65.4 27 34.6 12 44.4 15 55.6

Department of Commerce 55 28 50.9 27 49.1 13 48.1 14 51.9

Department of Labor 32 22 68.8 10 31.3 6 60.0 4 40.0

Department of Energy 23 14 60.9 9 39.1 3 33.3 6 66.7

Department of Housing and 

Urban Development 23 15 65.2 8 34.8 3 37.5 5 62.5

Department of State 19 13 68.4 6 31.6 3 50.0 3 50.0

Smithsonian Institution 18 11 61.1 7 38.9 2 28.6 5 71.4

General Services 

Administration 10 4 40.0 6 60.0 6 100.0 0 0.0

National Aeronautics and Space 

Administration 10 5 50.0 5 50.0 2 40.0 3 60.0

Tennessee Valley Authority 10 9 90.0 1 10.0 1 100.0 0 0.0

Equal Employment Opportunity 

Commission 9 8 88.9 1 11.1 0 0.0 1 100.0

Environmental Protection 

Agency 8 5 62.5 3 37.5 0 0.0 3 100.0
18 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table 3: Disposition of Appeals by Agency (cont.)

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

 Agency # # % # % # % # %

Federal Deposit Insurance 

Corporation 8 5 62.5 3 37.5 0 0.0 3 100.0

National Archives and Records 

Administration 8 3 37.5 5 62.5 4 80.0 1 20.0

Office of Special Counsel 7 7 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement 

Home 6 6 100.0 0 0.0 0 0.0 0 0.0

Court Services and Offender 

Supervision Agency for DC 6 6 100.0 0 0.0 0 0.0 0 0.0

Small Business Administration 6 6 100.0 0 0.0 0 0.0 0 0.0

Department of Education 4 3 75.0 1 25.0 1 100.0 0 0.0

Government Publishing Office 4 1 25.0 3 75.0 3 100.0 0 0.0

Securities and Exchange 

Commission 4 1 25.0 3 75.0 2 66.7 1 33.3

Agency for International 

Development 3 2 66.7 1 33.3 0 0.0 1 100.0

Federal Election Commission 3 2 66.7 1 33.3 0 0.0 1 100.0

Federal Housing Finance 

Agency 3 3 100.0 0 0.0 0 0.0 0 0.0

National Credit Union 

Administration 3 3 100.0 0 0.0 0 0.0 0 0.0

Nuclear Regulatory Commission 3 1 33.3 2 66.7 2 100.0 0 0.0

Broadcasting Board of 

Governors 2 1 50.0 1 50.0 0 0.0 1 100.0

Corporation for National and 

Community Service 2 0 0.0 2 100.0 1 50.0 1 50.0

Export-import Bank of the 

United States 2 0 0.0 2 100.0 2 100.0 0 0.0

Library of Congress 2 2 100.0 0 0.0 0 0.0 0 0.0

Millennium Challenge 

Corporation 2 1 50.0 1 50.0 1 100.0 0 0.0

National Labor Relations Board 2 1 50.0 1 50.0 0 0.0 1 100.0

Railroad Retirement Board 2 1 50.0 1 50.0 0 0.0 1 100.0

The White House 2 2 100.0 0 0.0 0 0.0 0 0.0
19 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table 3: Disposition of Appeals by Agency (cont.)

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

 Agency # # % # % # % # %

Architect of the Capitol 1 1 100.0 0 0.0 0 0.0 0 0.0

Architectural and Transportation 

Barriers Compliance Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Chemical Safety Hazard 

Investigation Board

1 0 0.0 1 100.0 1 100.0 0 0.0

Commission on Civil Rights 1 1 100.0 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Election Assistance Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Executive Office of the President, 

Office of the Administration 1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Mediation and 

Conciliation Service 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Retirement Thrift 

Investment Board 1 1 100.0 0 0.0 0 0.0 0 0.0

International Boundary and 

Water Commission: U.S. and 

Mexico

1 1 100.0 0 0.0 0 0.0 0 0.0

Judicial Branch 1 0 0.0 1 100.0 0 0.0 1 100.0

Merit Systems Protection Board 1 1 100.0 0 0.0 0 0.0 0 0.0

National Science Foundation 1 1 100.0 0 0.0 0 0.0 0 0.0

National Transportation Safety 

Board 1 0 0.0 1 100.0 0 0.0 1 100.0

Office of Management and 

Budget 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of the Director of National 

Intelligence 1 1 100.0 0 0.0 0 0.0 0 0.0

St. Lawrence Seaway 

Development Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

Total 4,893 3,166 64.7 1,727 35.3 812 47.0 915 53.0 

1 Percent Dismissed and Not Dismissed are of the number Decided.

2 Percent Settled and Adjudicated are of the number Not Dismissed.

3 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the CSRS and FERS administrator. 
20 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

 Agency # # % # % # % # %

Office of Personnel 

Management2

254 216 85.04 30 11.8 0 0.0 8 3.1

Department of Veterans Affairs 161 144 89.44 17 10.6 0 0.0 0 0.0

Department of the Army 69 52 75.36 10 14.5 7 10.1 0 0.0

Department of Homeland 

Security 56 48 85.71 5 8.9 3 5.4 0 0.0

Department of Defense 49 45 91.84 3 6.1 1 2.0 0 0.0

United States Postal Service 48 33 68.75 12 25.0 3 6.3 0 0.0

Department of the Navy 43 35 81.40 6 14.0 2 4.7 0 0.0

Department of the Air Force 33 29 87.88 3 9.1 1 3.0 0 0.0

Department of Justice 32 27 84.38 5 15.6 0 0.0 0 0.0

Department of Agriculture 28 21 75.00 5 17.9 1 3.6 1 3.6

Department of the Treasury 28 27 96.43 1 3.6 0 0.0 0 0.0

Department of Health and 

Human Services 15 13 86.67 2 13.3 0 0.0 0 0.0

Department of Transportation 15 13 86.67 1 6.7 1 6.7 0 0.0

Social Security Administration 15 13 86.67 1 6.7 1 6.7 0 0.0

Department of Commerce 14 12 85.71 2 14.3 0 0.0 0 0.0

Department of the Interior 12 11 91.67 0 0.0 1 8.3 0 0.0

Department of Energy 6 5 83.33 1 16.7 0 0.0 0 0.0

Department of Housing and 

Urban Development 5 5 100.00 0 0.0 0 0.0 0 0.0

Smithsonian Institution 5 5 100.00 0 0.0 0 0.0 0 0.0

Department of Labor 4 4 100.00 0 0.0 0 0.0 0 0.0

Department of State 3 3 100.00 0 0.0 0 0.0 0 0.0

Environmental Protection 

Agency 3 3 100.00 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 3 2 66.67 1 33.3 0 0.0 0 0.0

National Aeronautics and Space 

Administration 3 3 100.00 0 0.0 0 0.0 0 0.0

Agency for International 

Development 1 1 100.00 0 0.0 0 0.0 0 0.0

Broadcasting Board of 

Governors 1 1 100.00 0 0.0 0 0.0 0 0.0
21 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (cont.)

Adjudicated1 Affirmed Reversed Mitigated/ 

Modified Other

 Agency # # % # % # % # %

Corporation for National and 

Community Service 1 1 100.00 0 0.0 0 0.0 0 0.0

Equal Employment Opportunity 

Commission 1 1 100.00 0 0.0 0 0.0 0 0.0

Federal Election Commission 1 1 100.00 0 0.0 0 0.0 0 0.0

Judicial Branch 1 1 100.00 0 0.0 0 0.0 0 0.0

National Archives and Records 

Administration 1 1 100.00 0 0.0 0 0.0 0 0.0

National Labor Relations Board 1 0 0.00 1 100.0 0 0.0 0 0.0

National Transportation Safety 

Board 1 1 100.00 0 0.0 0 0.0 0 0.0

Railroad Retirement Board 1 1 100.00 0 0.0 0 0.0 0 0.0

Securities and Exchange 

Commission 1 1 100.00 0 0.0 0 0.0 0 0.0

Total 915 779 85.1 106 11.6 21 2.3 9 1.0 

1 Adjudicated, i.e., not dismissed or settled.

2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the CSRS and FERS administrator. 

Percentages may not total 100 because of rounding.

Cases Processed at Headquarters

Other than two stay requests (see Table 1), the lack of quorum prevented MSPB from issuing any 

decisions from HQ during FY 2019. Therefore, there are no further HQ case processing statistics 

contained in this AR. At the end of FY 2019, MSPB had 2,378 PFR cases pending at HQ. However,

24 cases were withdrawn in FY 2019 under a new procedure begun in May 2018. These withdrawals 

were not Board decisions so they are not included in HQ case processing statistics.
22 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

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23 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

SIGNIFICANT COURT OPINIONS ISSUED IN FY 2019

As stated earlier, due to the lack of quorum, the Board did not issue any significant decisions in FY 

2019. As a service to MSPB’s stakeholders, we have provided brief summaries of significant opinions 

issued by the CAFC and one by the U.S. Court of Appeals for the First Circuit in a whistleblower case.

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit

Adverse Action Charges/Drug Related

Hansen v. Department of Homeland Security, 911 F.3d 1362 (Fed. Cir. 2018): After the petitioner failed a 

random drug test, the agency proposed his removal for “positive test for illegal drug use—

marijuana.” The deciding official considered the petitioner’s justification that he had inadvertently 

ingested the marijuana but found the explanation unconvincing and sustained his removal. The 

petitioner appealed his removal to MSPB, which affirmed the agency’s action, and the petitioner 

appealed to the CAFC. The court agreed with the AJ that the petitioner occupied a position subject 

to random drug testing, that the agency did not need to prove intent to establish the charge of 

“positive test for illegal drug use—marijuana,” and that the undisputedly positive test result sufficed 

to prove the charge. The court further found that the agency did not need to prove intent to 

establish that the petitioner’s conduct affected the efficiency of the service or that his removal was 

reasonable, although the court acknowledged that the Board must consider evidence of inadvertence 

in assessing the reasonableness of the penalty. The court held that, while evidence regarding the 

absence of intent may be relevant to rebut the agency’s showing of nexus or the reasonableness of 

the penalty, it is the employee’s burden to come forward with such rebuttal evidence. The court 

found that the AJ properly applied this framework and found no error in his conclusion that the 

petitioner failed to persuasively rebut the Government’s showing of nexus or its choice of penalty. 

The court declined to consider the petitioner’s challenges to the random drug testing that he raised 

for the first time on review. 

Attorney Fees

American Federation of Government Employees Local 3599 v. EEOC, 920 F.3d 794 (Fed. Cir. 2019): The 

court, which reviews arbitration decisions under the same standard of review as Board decisions, 

vacated the arbitrator’s denial of attorney fees in connection with a successful arbitration. The court 

explained that, although it affords “great deference to the Board (or an arbitrator standing in the 

place of the Board) on questions of entitlement to attorney fees,” the adjudicator must provide a 

sufficient explanation for his decision. Here, the arbitrator failed to provide any explanation in 

support of his decision to deny attorney fees. The court observed that, although the entitlement to 

attorney fees in a particular case could be so clear that the court could affirm or reverse the denial of 

fees in the absence of an explanation from the adjudicator as to why he denied the fee award, such 

as when no application of the relevant factors could justify the opposite result, this was not such a 

case. Accordingly, the court remanded the attorney fee issue to the arbitrator, directing him to 

include “a statement of reasons for whatever decision [he] reaches.” The court also noted that, 

although an arbitrator may not revise his merits decision as a basis for denying attorney fees, a 

decision on a fee award need not be limited to the factual findings and conclusions contained in the 

merits decision. 
24 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Constructive Actions

Jenkins v. MSPB, 911 F.3d 1370 (Fed. Cir. 2019): The CAFC held that when an agency has rescinded 

an effectuated removal action during the pendency of an appeal, eliminated all references to the 

action from the employee’s official personnel file, and substituted retirement as the reason for the 

separation, the appeal of the removal is rendered moot. Under these circumstances, the court held 

that 5 U.S.C. § 7701(j) is inapplicable. Section 7701(j) provides that the Board, “in determining the 

appealability . . . of any case involving a removal from the service,” may not consider “an 

individual’s status under any retirement system established by or under Federal statute.” The court 

reasoned that once the removal action has been fully rescinded, the case no longer involves a 

removal and § 7701(j) does not apply. The court found that substantial evidence supported the 

Board’s finding that the petitioner voluntarily retired and that his retirement was not the product of 

misinformation or coercion. 

Due Process

Boss v. Department of Homeland Security, 908 F.3d 1278 (Fed. Cir. 2018): During arbitration regarding 

the petitioner’s 15-day suspension based on three charges, the deciding official conceded that he had 

considered three documents related to the first charge that had not been provided to the petitioner 

or the union. The arbitrator found that the deciding official’s consideration of the ex parte

information constituted a due process violation and vacated the first charge. However, he found that 

the second and third charges were not affected by the due process violation, sustained those charges, 

and mitigated the penalty to a 10-day suspension. The petitioner appealed the arbitration decision to 

the CAFC, and the court, which reviews arbitration decisions in the same manner as Board 

decisions, affirmed the decision. The court held that the constitutional due process analysis should 

be applied on a charge-by-charge basis, explaining that when an agency charges an employee with 

multiple offenses, the adjudicator may address the merits of charges that were unaffected by the due 

process violation and need not set aside the entire action on due process grounds. The court 

acknowledged its holding in Stone v. Federal Deposit Insurance Corporation, 179 F.2d 1368 (Fed. Cir. 

1999), that a procedural due process violation due to ex parte communications requires a new 

constitutionally correct procedure and is not subject to the harmless error test. The court clarified 

that such a violation would only prevent an adjudicator from analyzing whether the agency would 

have disciplined the employee for the defective charge in the absence of the procedural defect, and 

not from sustaining an adverse action based on other charges unaffected by the due process 

violation. The court distinguished Board cases that had found that a due process violation requires 

reversal of the entire action without any consideration of the merits of the charges, explaining that 

those cases were either single-charge cases or cases in which the due process error had infected all of 

the charges. 

Do v. Department of Housing and Urban Development, 913 F.3d 1089 (Fed. Cir. 2019): The agency 

demoted and suspended the petitioner for “negligence of duty” in hiring and later promoting an 

employee who did not possess a college degree, which the agency claimed was required for the 

positions at issue. The petitioner appealed the demotion and suspension to the Board. The AJ found 

that a college degree was not required for the positions and that the employee alternatively could 

qualify for the positions with combination of education and experience. Nevertheless, she affirmed 

the agency’s actions, finding that the petitioner was negligent because she failed to investigate 

whether the employee met the alternative qualification requirements for the positions. The petitioner 

appealed the decision to the CAFC, which reversed the initial decision and remanded the matter for 

further adjudication. The court found that, although the Board is required to limit its review of an 

agency’s action to the grounds specified in the proposal notice and relied upon by the deciding 
25 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

official, the AJ sustained the agency’s action on the basis of an alternative theory that did not appear 

anywhere in the notice or the deciding official’s decision. The court found that the AJ’s departure 

from the agency’s decision was “significant” and constituted a violation of the petitioner’s due 

process rights, as she did not receive notice and an opportunity to respond to this alternative theory. 

The court rejected the agency’s harmless error arguments, finding that even if it applied a harmless 

error test here, there was no basis to conclude that the errors were harmless. 

Hornseth v. Department of the Navy, 916 F.3d 1369 (Fed. Cir. 2019): The agency suspended the 

petitioner’s access to classified information and, because he could not perform the essential 

functions of his position without such access, indefinitely suspended him. The petitioner appealed 

his indefinite suspension to the MSPB, which affirmed the agency’s action, and the petitioner 

appealed to the CAFC. The court found that the AJ properly sustained the charge, agreeing that a 

security clearance was required for the petitioner’s position, that it was revoked, and that the 

procedures set forth in 5 U.S.C. § 7513(b) were satisfied because the petitioner received notice, had 

an opportunity to respond and be represented, and was provided with a written decision with 

reasons. The court also agreed with the AJ that the deciding official’s ex parte communications with 

HR following the petitioner’s response to the proposed action did not violate the petitioner’s due 

process rights because they were cumulative and did not introduce new information. However, the 

court disagreed with the AJ’s determination that to comport with due process, the deciding official 

must be able to take or recommend alternative agency action based on the employee’s reply. The 

court found that an employee has a right to be transferred to a non-sensitive position only if that 

right is conferred by a statute or regulation and held that, because no alternative position was 

authorized here, the AJ erred in finding that the deciding official was required to be able to direct or 

recommend alternative placement. Nonetheless, the court concluded that this error was harmless 

because the petitioner received all of the procedural protections provided by law. The court 

acknowledged that a deciding official must have the authority to act on behalf of the agency but 

found that the requirement was met here because, pursuant to the Navy instructions regarding 

adverse decisions, the designated official had authority to either make or recommend a decision on 

the proposed action. 

Robinson v. Department of VA, 923 F.3d 1004 (Fed. Cir. 2019): The petitioner, a senior management 

official in Phoenix, was removed from his VA position following an inspector general investigation 

and a Senate committee hearing on the topic of mismanagement of veterans’ health care at the 

Phoenix facility. The day before the agency issued the proposal to remove him, the Deputy VA 

Secretary was quoted in The New York Times to the effect that he was disappointed it had taken so 

long to remove the petitioner and other executives responsible for mismanagement. The petitioner 

appealed to the MSPB, which sustained his removal. The CAFC affirmed the MSPB’s findings and 

penalty determination. The court considered the petitioner’s due process arguments, including that 

he was not given an opportunity to respond to the proposed removal before it was discussed in a 

press article. The court agreed that the reported statements by the Deputy VA Secretary were 

“troublesome” but did not disturb the MSPB’s credibility findings, which credited the Deputy VA 

Secretary’s testimony that The New York Times had misquoted him and that he did not predetermine 

the outcome of the case. The court also noted that the removal decision showed that the Deputy 

VA Secretary considered the petitioner’s response – and, indeed, dismissed one of the specifications 

as a result of the petitioner’s response – and thus the due process requirements of pre-termination 

notice and an opportunity to be heard were satisfied. 
26 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Removal Pursuant to Title 38

Cerwonka v. Department of VA, 915 F.3d 1351 (Fed. Cir. 2019): The agency employed the petitioner as 

a Clinical Psychologist in Louisiana, and he was licensed to practice psychology in both Louisiana 

and New York. After the Louisiana State Board of Examiners of Psychologists revoked his license 

for cause, the agency removed him from his position pursuant to 38 U.S.C. § 7402(f), which 

provides that a person may not be employed as a psychologist if he is licensed in more than one 

state and any of those states terminates his license for cause. The petitioner appealed his removal to 

the MSPB, which affirmed the removal, and the petitioner appealed to the CAFC. The court found 

that 38 U.S.C. § 7402(f) controlled the petitioner’s removal and that the agency therefore was not 

required comply with 5 U.S.C. Chapter 75 standards in effecting his removal, i.e., by addressing 

nexus and the reasonableness of the penalty. Rather, the court found, under 38 U.S.C. § 7402(f), the 

agency was required to remove the petitioner once one of his state licenses was removed for cause, 

and it was not permitted to consider other factors or to exercise any discretion. Accordingly, the 

court found that the agency’s action here complied with 38 U.S.C. § 7402(f). Regarding the 

petitioner’s contention that his removal was unjustified because his Louisiana license has been 

reinstated, the court found that the express terms of 38 U.S.C. § 7402(f) compelled his removal at 

the time his license was revoked and did not permit the agency to consider subsequent events or to 

impose a lesser penalty. The court found no merit to the petitioner’s remaining arguments regarding 

his retaliation affirmative defense and procedural errors by the agency and AJ. 

Timeliness

Kerr v. MSPB, 908 F.3d 1307 (Fed. Cir. 2018): The CAFC held that the petitioner demonstrated good 

cause to waive the nearly 10-year untimeliness of her MSPB appeal because she had a reasonable 

basis for thinking that the district court could resolve her whistleblower claims along with her 

mixed-case claims. The court reversed the Board’s decision dismissing the petitioner’s appeal as 

untimely and remanded for further proceedings. The court determined that the petitioner reasonably 

relied on a 10th Circuit decision that held that a whistleblower claim could be decided in the first 

instance by a district court. The court stated that filing a case in the wrong forum can be excused 

when a claimant actively pursued her remedies by filing the defective pleading within the statutory 

period. The court found that good cause was further supported by the defectiveness of the notice in 

the petitioner’s employing agency’s Final Agency Decision, which “did not warn the petitioner that 

she would waive her non-discriminatory claim by failing to file at the MSPB.” The court stated that 

it was reasonable for the petitioner to continue litigating her case all the way to the Supreme Court 

given the split between the 9th and 10th circuits on whether a district court could review a 

whistleblower claim that had not been reviewed administratively (despite the fact that the petitioner

was litigating her case in the 9th Circuit). Finally, the court rejected the argument that the petitioner

made an election when she chose to file in district court. The court stated that the petitioner was 

merely seeking review of her whistleblower claim in the first instance, not a second chance to 

relitigate the claim. The court held that election of remedies has no application when the elected 

remedy is not available in the selected forum. 

USERRA/Exclusion of Evidence

Sharpe v. Department of Justice, 916 F.3d 1376 (Fed. Cir. 2019): The petitioner, a GS-13 Drug 

Enforcement Administration agent and a reservist in the Navy until 2008, applied for 14 GS-14 

positions over several years and was placed on the Best Qualified List for each, but was never 

selected. He challenged the 14 non-selections before the MSPB, alleging that the agency 

discriminated against him in violation of USERRA by relying on the recommendations of his 
27 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

supervisor, whom he alleged was hostile toward reservists. Before the MSPB, the petitioner sought 

to introduce an email sent by another supervisor to a different reservist who had also filed a 

USERRA claim. The petitioner’s supervisor was copied on this email. The email had the subject line, 

“You are a coward...” and the text stated, “I do not know how to phrase it any other way... Do 

NOT ever contact me again.” The MSPB excluded the email from the proceedings as irrelevant, and 

denied the petitioner’s request for corrective action on the ground that he failed to show that his 

reservist status was a substantial or motivating factor in the non-selections. The CAFC reversed, 

finding that the AJ abused his discretion by excluding the email and preventing the petitioner from 

questioning his supervisor about it. The court held that his supervisor’s response to the email was 

relevant, and that his supervisor should have been allowed to discuss the email as foundation for 

that relevant testimony. 

Whistleblowing/Merits Analysis Using Carr Factors

Siler v. Environmental Protection Agency, 908 F.3d 1291 (Fed. Cir. 2018): The petitioner was removed 

from his position of Special Agent pursuant to charges of engaging in conduct unbecoming a 

criminal investigator, improperly using a Government computer for outside business, and failing to 

report an outside business. The petitioner alleged that he was removed in reprisal for 

whistleblowing. The MSPB affirmed the removal. During the course of the MSPB litigation, the 

petitioner sought the production of emails related to drafts of his proposed removal, but the agency 

asserted that the documents were protected by the attorney-client privilege. The court found that 

because the agency made no actual showing of why the documents should be considered privileged, 

the MSPB improperly denied the petitioner’s request for production of those documents. The court 

additionally found that the MSPB erred when determining whether the agency had proven by clear 

and convincing evidence that it would have removed the petitioner even if he had not made 

whistleblowing disclosures. The court held that the MSPB incorrectly analyzed Carr factor three 

regarding how the agency treated comparators who were not whistleblowers, by instead assessing 

how the agency treated comparators who were whistleblowers. See Carr v. Social Security 

Administration, 185 F.3d 1318 (Fed. Cir. 1999). The court further held that the MSPB incorrectly 

found that the agency’s lack of evidence of non-whistleblower comparators favored the agency. 

Smith v. General Services Administration, 930 F.3d 1359 (Fed. Cir. 2019): The petitioner was removed 

from his position of Senior Financial Advisor for failing to comply with an IT policy, failing to 

follow supervisory instructions, and disrespectful conduct toward a supervisor. The petitioner 

alleged that he was removed in reprisal for whistleblowing. The MSPB affirmed the agency’s 

decision on the basis that the agency proved by clear and convincing evidence that it would have 

removed the petitioner even absent his whistleblowing activity. The court reversed and remanded 

the MSPB’s decision, holding that the MSPB’s decision applied an incorrect standard by improperly 

conflating whether the removal was justified and whether the removal would have been effected 

absent whistleblower activity. The court further held that the MSPB failed to properly analyze 

factors two (strength of agency motive to retaliate) and three (evidence that the agency takes action 

against similarly-situated non-whistleblowers) of the Carr analysis relevant to the determination of 

whether the agency proved by clear and convincing evidence that it would have removed the 

appellant absent any whistleblowing activity. See Carr v. Social Security Administration, 185 F.3d 1318 

(Fed. Cir. 1999). Additionally, with respect to the MSPB’s decision to sustain the charges against the 

petitioners, the court held that the affirmance of the charges of failing to comply with IT policy and 

failure to follow supervisory instructions were not supported by substantial evidence. For the IT 

policy charge, the court found that the agency failed to prove the agency’s IT policy requiring 

employees to remove personal identity verification (PIV) security cards from their computers 

applied to the petitioner, a quadriplegic who lacked the ability to remove his PIV security card. For 
28 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

the supervisory instruction charge, the court found that the agency failed to produce any evidence 

that its instruction to the petitioner not to work on weekends was a valid agency policy.

Significant Opinions in Whistleblower Appeals Issued by Other Circuit Courts 

Mount v. Department of Homeland Security, 937 F.3d 37 (1st Cir. 2019): The First Circuit held that the 

WPA only requires that a complainant include a sufficient factual basis for the Office of Special 

Counsel (OSC) to investigate rather than the overly-stringent exhaustion requirement the court 

believed had been applied by MSPB. The Board had rejected Mr. Mount’s claim that his supervisors 

“perceived” him as engaging in protected whistleblowing activity based on a finding that his OSC 

complaint did not allege facts that would put OSC on notice of the perceived whistleblower claim.

The First Circuit held that the exhaustion language in the Whistleblower Protection Act (WPA) was 

simple and brief and should not be read “in a way that drastically conditions the rights that the WPA 

seeks to protect and makes it harder for whistleblowers to obtain relief.” The court found that the 

WPA’s legislative history supported this view. The court stated that it believed the correct approach 

is to interpret the WPA’s exhaustion requirement consistent with the exhaustion schemes of the 

Federal Tort Claims Act and Title VII of the Civil Rights Act. The court also pointed to Board 

decisions where the Board applied less stringent formulations of the exhaustion requirement. The 

court concluded that “it is unnecessary for an employee to correctly label the cause of action or legal 

theory behind his claim for it to be deemed exhausted before the OSC,” so long as there is a 

sufficient basis for OSC to investigate. The court remanded to the Board for further proceedings 

consistent with its opinion. 
29 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2019

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service and 

merit systems. MSPB’s high-quality, objective studies provide value by assessing current 

management policies and practices, identifying innovative and effective merit-based approaches to 

current workplace issues, and making recommendations for improvements. Overall, this benefits 

American taxpayers in terms of decreased Governmentwide costs and increased confidence that the 

Government is doing its job and appropriately managing the workforce.

OPE’s research and publications were cited at least 73 times during FY 2019, in diverse outlets such 

as national and specialty newspapers, online newsletters, radio, and publications from good 

Government groups. Notably, during FY 2019 information in OPE publications was explicitly relied 

upon in OPM’s new hiring guidance; in a letter from the House Veterans’ Affairs Committee to VA 

leadership; in a report from the USDA Inspector General; in testimony before the U.S. Commission 

on Civil Rights; and in a report from the CRS to the House Committee on Oversight and Reform. 

These references show that the voice of MSPB’s studies program has a broad reach among officials 

with high-level oversight, investigative, and policy-setting responsibilities.

During FY 2019, OPE also conducted 15 outreach events. These events ranged from presentations 

on sexual harassment for Government Accountability Office (GAO) staff, congressional staff, and 

HR officials; recounting the history and structure of the civil service agencies for an HR career 

development program; workshops for supervisors aimed at improving employee performance; and 

educating international visitors about the career civil service system in the United States.

Publications Issued

MSPB did not issue any formal reports to the President and Congress under 5 U.S.C. § 1204(a)(3) 

because of the continued lack of quorum. However, OPE published three editions of its Issues of 

Merit newsletter, which included articles on various topics such as direct-hire authority, veterans’ 

rights in Federal employment, the performance appraisal process, locality pay, and assessing 

applicants. In addition, OPE published four research briefs.

 Improving Federal Leadership Through Better Probationary Practices (May 2019) discusses policy and 

agency practice related to supervisory and managerial probationary periods. Recognizing that 

supervision is a distinctive and important responsibility, civil service law provides for a 

probationary period for new supervisors and managers. This publication examines how the 

supervisory and managerial probationary periods are being used by agencies, identifies 

barriers to using them more effectively, and outlines steps that agencies can take to improve 

Federal leadership through better probationary practices. 

 The Perceived Incidence of Prohibited Personnel Practices (June 2019) presents data on employee 

experience or observation of the 14 PPPs enumerated in civil service law. The report 

documents an increase since 2010 in the percentage of employees who believe they have 

experienced or observed a PPP and discusses how PPPs, whether perceived or actual, can 

damage leadership’s credibility and employee commitment.

 Remedying Unacceptable Employee Performance in the Federal Civil Service (June 2019) discusses how 

Federal supervisors address the issue of unacceptable employee performance. Data indicate 

that Federal supervisors often try several different measures, but that no measure is 

consistently successful. The brief outlines reasons why certain measures might work or 
30 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

prove unavailing, and outlines steps that agencies can take to both remediate performance 

and to prevent unsatisfactory performance that is grounded in sub-optimal hiring practices 

or bad job fit.

 Managing Employees to Perform Emotionally Laborious Work (July 2019) discusses the prevalence

and effects of emotional labor—the requirement to display and manage emotions to 

perform work. Such labor is common and essential in many public service organizations, 

such as those that provide human services or respond to crises. Using data from MSPB’s

2016 MPS, the brief discusses how some employees’ need to conceal or feign emotions on 

the job can contribute to emotional fatigue, reduced performance, and decreased retention. 

The brief outlines measures that some Federal agencies have taken to help employees 

prepare for and recover from emotional labor.

Other Studies Activity

MSPB last updated its studies research agenda in early 2015. In FY 2019, OPE solicited ideas from 

stakeholders for another update of the research agenda. OPE vetted and refined ideas from the 

hundreds of suggestions received and compiled a list of 40 proposed topics, which comprise both

new areas of study and subjects that build on previous research. The next steps are consultation with 

the Vice Chairman and Member (once confirmed), followed by review, possible modification, and 

approval of the final agenda by the Chairman (once confirmed).

MSPB acquired a secure web-based survey platform during FY 2019. The new system must be 

subjected to a security assessment and the Chief Information Officer (CIO) must grant an authority 

to operate before MSPB can field a survey directed to employees of other agencies. Obtaining 

survey data is a critical source of information for many topics on the research agenda, and a project 

with a long lead-time. OPE’s tentative plan is to conduct a large survey in calendar year 2020, with 

the precise timing (4

th quarter of FY 2020 or 1st quarter of FY 2021) to be determined.
31 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT

As required by statute,17 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs and free from PPPs.18 OPM’s actions 

broadly affect the Federal workforce, multiple Federal agencies, and applicants for Federal jobs. 

Each of OPM’s actions listed below have the potential to impact the effectiveness and efficiency of 

the Federal workforce (MSP 5) or fair and equitable treatment in a variety of contexts (MSP 2). 

Depending on the nature of a particular OPM action, it has the potential to affect or involve other 

specific MSPs. Additional MSPs that may be affected by a particular OPM action are noted in the 

discussion of each action. In addition to tracking OPM’s actions in FY 2019, we requested and 

received input from OPM on the status of selected significant actions.

OPM Leadership and Context

For most of FY 2019, OPM was led by an acting director. Jeff T. H. Pon resigned as OPM 

Director at the beginning of the fiscal year (on October 5, 2018), and Dale Cabaniss began her 

tenure as OPM Director at the end of the fiscal year (on September 16, 2019). In FY 2018, the 

Administration proposed a restructuring of OPM that included moving its policy functions to the 

Executive Office of the President and transferring its operational activities to other agencies.19

MSPB’s review of FY 2018 OPM significant actions discussed this proposal.20 During FY 2019, 

OPM’s National Background Investigations Bureau (NBIB) was transferred to the Department of 

Defense’s Defense Counterintelligence and Security Agency.21

These developments clearly have implication for “significant actions of OPM.” First, it is much 

easier to identify priorities, develop policy proposals, and undertake new initiatives with a permanent 

director in place. Second, although there is widespread belief that many aspects of Federal HR policy 

and workforce management need updating or reform, there is little apparent consensus among 

policymakers and stakeholders about the specifics of such reform. In this environment, OPM 

leadership is important to articulate the need for change and shepherd reforms through legislation, 

regulation, and implementation.

MSPB’s FY 2018 review of OPM significant actions did not discuss specific OPM initiatives or 

actions in detail. Instead, to mark the 40th anniversary of the CSRA, it considered some of the 

overarching themes that have emerged from previous MSPB reviews of OPM actions, policies, and 

operations. Therefore, this FY 2019 review may include OPM actions that occurred in FY 2018. 

OPM’s FY 2019 significant actions that MSPB reviewed generally fell within five categories: (1) 

agency human capital programs, (2) hiring, (3) workforce shaping, (4) work-life programs, and (5) 

employee performance management and rewards.

 

17 5 U.S.C. § 1206.

18 5 U.S.C. § 2301 and 5 U.S.C. § 2302, respectively.

19 OMB, Delivering Government Solutions in the 21st Century—Reform Plan and Reorganization Recommendations, July 2018, p. 16.

20 See MSPB, Annual Report for FY 2018, February 28, 2019, pp. 28-36.

21 Government Executive, The Pentagon Has Officially Taken Over the Security Clearance Process, October 2, 2019. The NDAA for FY 2018 transferred the 

background investigations performed by NBIB for the Department of Defense (DoD) from NBIB to DoD (§ 925(b) of Public Law 115-91). The 

Administration announced its intention to transfer the remaining background investigations volume to DoD in July 2018 (see OMB, Delivering 

Government Solutions in the 21st Century—Reform Plan and Reorganization Recommendations, July 2018, pp. 115-117).
32 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Agency Human Capital Programs

OPM has recently undertaken a number of actions related to the operation of agency human capital 

programs. Among them are:

 Developing and maintaining the Federal Human Capital Business Reference Model

(HCBRM);

 Developing evaluation system standards to discern the impact of human capital management 

on agency mission accomplishment; and 

 Developing the framework to conduct agency human capital reviews.

Federal Human Capital Business Reference Model. The HCBRM defines the end-to-end 

lifecycle of Federal Government human capital management to assist agency HR specialists in 

performing their functions, and is an initial step in establishing a common experience for all 

employees concerning delivery of HR operations and services.22 The HCBRM is composed of 15 

functions and 54 sub-functions that represent the statutorily required activities the Government 

must perform to establish and manage a world-class workforce. Among these are five OPM-specific 

Governmentwide functions including Federal human capital leadership (regulation, policy, and 

service delivery); Federal oversight and evaluation; Federal vetting (suitability and fitness, 

credentialing, and background investigations); Federal benefits; and Federal retirement.

Evaluation System Standards. The evaluation system standards measure the impact of human 

capital management on mission accomplishment, which is a critical step towards improving 

organizational performance. The five standards are: 

 Leadership involvement. Agency leadership fully supports and adequately resources the 

agency’s evaluation system to ensure organizational performance is monitored, adjustments 

are made when necessary, and human capital programs operate within merit system 

principles.

 Communication. Internal agency leadership communication ensures cross-organizational 

collaboration towards achieving mission objectives, informing decision-making, eliminating 

redundancies, and assessing progress towards achieving organizational goals.

 Data driven decision-making. Data connects human capital management practices to 

business outcomes and organizational goals to provide baseline information for comparing 

actual program results with established performance goals.

 Assessment. The agency assesses all human capital framework systems to help accomplish 

strategic goals, and to ensure human capital policies, programs, and practices are efficient 

and effective, meet MSPs, and maintain regulatory compliance.

 Formal and documented. The agency has a policy that describes how the evaluation system 

operates and will serve as a roadmap for implementation.23

Human Capital Reviews (HCRs). HCRs are annual discussions between agency leadership and 

leaders from OPM’s Employee Services (policy), Merit Systems Accountability and Compliance 

(oversight), and Human Resources Solutions (products and services) organizations. HCRs are 

envisioned to be an interactive dialogue leveraging OPM’s partnership to identify and share 

successful practices, identify root causes of issues, develop solutions, and highlight crosscutting 

 

22 OPM Memorandum for Chief Human Capital Officers, Federal Human Capital Business Reference Model, November 3, 2017.

23 OPM Memorandum for Human Resources Directors, Evaluation System Standards, March 26, 2018.
33 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

organizational challenges within agencies.24 A number of critical success factors have been identified 

that will be benchmarked through the HCR process, including alignment of agency goals and 

priorities with the human capital framework; identification of risks, barriers, and challenges; human 

capital operating plan goal attainment; agency support for the Federal Workforce Priorities Report; 

performance measurement; and closure of skills gaps.25

Significance

Agency human capital management programs must be efficient and effective in order for virtually all 

of the MSPs to be upheld and the PPPs to be avoided. Therefore, OPM’s attention to improving 

those agency programs also underpins each of the MSPs and helps deter the PPPs. These current 

efforts (generally prescribed by 5 CFR part 250 subpart B) to standardize, evaluate, and review 

agency human capital programs are essential to the functioning of the merit system. 

There are several issues that OPM and policymakers should consider when structuring and 

implementing an oversight and compliance program, which include:

 Agency incentives and the limits of self-monitoring. The MSPs, laws, and regulations that 

govern the civil service may impose requirements that Federal agencies and Federal 

managers may view as irrelevant to, or inconsistent with, their immediate interests. Agencies 

may be (understandably) disinclined to devote substantial attention or staff resources to HR 

compliance and monitoring—particularly when such efforts could reveal deficient personnel 

practices or decisions.

 The limits of focusing on strategic alignment and broad results. Such a perspective is necessary 

to ensure that HR policies are functional and that HR authorities are used to achieve broader 

organizational outcomes. However, some abuses—such as reprisal against a whistleblower, 

favoritism, and manipulation or circumvention of an employment examination—are likely to 

be isolated occurrences. Yet even isolated instances of deliberate abuse can be extremely 

harmful. An effective oversight program must recognize this and, in some instances, include 

review and control processes that may be labor-intensive and intrusive.

 OPM’s structure and finances. As MSPB has previously noted, there is a continuing tension 

between OPM’s leadership and oversight roles and its role as a provider of products and 

services. OPM was authorized by law to recover the costs of providing services in the areas 

of recruitment, assessment, staffing, and training and management assistance. This cost 

recovery model gives OPM the incentive to acquire customers for its products and 

services—who are also the same agencies that OPM evaluates for adherence to merit 

principles and compliance with law and regulation.26

Hiring

There are a number of MSPs and PPPs that relate to hiring. For example, the first MSP requires that 

recruitment be from qualified individuals to achieve a workforce representative of society, and the 

second MSP notes that applicants should receive fair and equitable treatment. The first PPP 

prohibits discrimination for or against any applicant for employment, and the fourth PPP prohibits 

 

24 OPM Memorandum for Heads of Agencies and Departments, Human Capital Reviews, February 13, 2019.

25 OPM Memorandum for Human Resources Directors, Human Capital Review Guidance, June 25, 2018.

26 MSPB, Annual Report for Fiscal 2004, March 2005; and Annual Report for Fiscal Year 2018, February 2019, p. 31.
34 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

influencing a person to withdraw from competition for any position for the purpose of improving 

or injuring the prospects of any other person for employment. 

OPM recently has taken a number of actions with respect to hiring within the Federal Government. 

These include granting direct hire authority for certain positions,27 an update to the Delegated 

Examining Operations Handbook,28 and revitalizing the delegated examining certification program.29

Two additional actions, however, may have a broader impact on the Federal Government’s hiring 

activities: guidance issued to improve hiring using effective assessment strategies and a study on the 

use of excepted service hiring authorities, which are discussed below.

Guidance on Improving Hiring. In a September 2019 memorandum, OPM provided guidance 

that agencies can use to improve outcomes in Federal hiring.30 While noting that OPM and OMB are 

collaborating with agencies to examine broader reforms to the hiring process, the memorandum 

offered the following guidance related to minimum qualifications, assessments, and subject matter 

experts to enable simple and strategic hiring.

Minimum Qualifications. Agencies should write minimum qualification requirements clearly and 

accurately to enable raters to screen out applicants lacking minimum experience or education from 

further consideration at the outset of the process. OPM suggested that agencies address the actual 

competencies needed to perform the work successfully when screening applicants for minimum 

qualifications. After determining minimum qualifications, applicants should then be assessed to make 

sure they have the required level of proficiency in key competencies to be successful in the position.

Assessments. Agencies should use effective assessments to identify qualified candidates who are 

actually capable of effectively performing the duties of the position. Agencies should reexamine 

available assessment techniques and methods, and identify the best tools to assess applicants to 

make meaningful distinctions and determine highly qualified talent.

Subject Matter Experts (SMEs). Agencies should use SMEs possessing diverse backgrounds and 

experiences to work with HR to determine whether applicants are qualified. SMEs can conduct 

structured interviews to determine the most highly qualified candidates, as well as help HR identify 

and document the competencies and proficiency levels required to perform essential functions of 

the job. OPM recommended that HR practitioners collaborate with their HR policy office and 

hiring managers to determine the appropriate types of positions and stages of the hiring process to 

involve SMEs.

Significance

For a long time, MSPB has been a strong advocate for emphasizing quality of hire over speed or 

cost of hire, and for investing in quality assessment. This guidance is consistent with those themes, 

and as we noted in Improving Federal Hiring Through Better Assessment,

31 recent hiring reform efforts, 

 

27 See OPM Memoranda for Heads of Departments and Agencies, Announcing Government-wide Direct Hire Appointing Authorities, October 11, 2018; and 

for Heads of Agencies and Departments CHCOs and CIOs, Delegation of Direct-Hire Appointing Authority for IT Positions, April 5, 2019.

28 OPM Memorandum for Human Resources Directors, Update of the Delegated Examining Operations Handbook, June 14, 2019.

29 OPM Memorandum for Chief Human Capital Officers, Launch of the Revitalized Delegated Examining Certification Program, July 24, 2019.

30 OPM Memorandum for Heads of Executive Departments and Agencies, Improving Federal Hiring through the use of Effective Assessment Strategies to Advance 

Mission Outcomes, September 13, 2019.

31 OPM Memorandum for Heads of Executive Departments and Agencies, Improving Federal Hiring through the use of Effective Assessment Strategies to Advance 

Mission Outcomes, September 13, 2019.
35 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

while helping to improve the applicant experience, may have made it more difficult for agencies to 

evaluate applicant qualifications. 

This initiative differs from recent hiring reform efforts in some notable ways. First, it focuses on the 

substance of the hiring process, rather than particular mechanics (such as appointing authorities or 

the once-common requirement that applicants submit narrative descriptions of job-related abilities 

with their initial applications). Second, the guidance is accompanied and illustrated by operating 

models—agency initiatives that integrated elements of the guidance into actual recruitment and 

hiring efforts in a coherent, integrated way. Those models have particular value, because they 

demonstrate that the guidance, if thoughtfully used, can yield real improvements; help agencies think 

about hiring improvement systematically; and reinforce the fact that improvement will likely require 

investment.

OPM’s recommendations will help move agencies in the right direction, but there are additional 

steps that agencies, OPM, and Congress can take to ensure that agencies are able to hire the talent 

needed to deliver the Federal Government’s critical missions. We outlined these steps in an October

2019 MSPB Perspective, Building on OPM’s Hiring Improvement Memo,

32 and they include: (1) getting the 

right people involved; (2) defining good job qualifications; (3) using valid assessments; and (4) 

making assessments more accessible to agencies.

As discussed, these seemingly obvious steps also are longstanding challenges. For some steps, such 

as involvement and qualifications, the causes—and solutions—lie with agencies and in better 

strategy and execution. Assessment and access to assessments is more complicated. Developing and 

defending assessments is complex and costly, and many agencies lack the expertise and resources for 

that endeavor. Many agencies also lack the resources to acquire and deploy externally-developed 

assessments, such as those available under OPM’s USA Hire program. Here, it may be necessary for 

Congress to act—e.g., providing OPM with budgetary resources to make USA Hire and other 

assessments more affordable—to make substantial and lasting improvements.

33

Governmentwide Study of Excepted Service Hiring Authorities. In July 2018, OPM released 

the study Excepted Service Hiring Authorities: Their Use and Effectiveness in the Executive Branch.

34 The 

excepted service provides a more flexible approach to hiring to support agency mission needs when 

it is “impracticable” to apply traditional competitive examining methods. The purpose of the study 

was to assess the extent to which agencies use Title 5 excepted service hiring authorities; the 

effectiveness of these hiring policies and practices; and compliance with related laws and regulations. 

Two major findings of the report are that agencies do not consistently comply with some of the 

requirements under excepted service hiring, and that agencies do not use some of the flexibilities 

permitted under excepted service hiring. 

Compliance. OPM was not able to fully determine if agencies are adhering to the merit system 

principles and relevant public policies because of a lack of documentation. For instance, about half 

of the recruitment actions OPM reviewed contained only the resume of the selectees and no 

information on other applicants, specific recruitment sources used, or even information about how 

selectees were identified. This makes it difficult to ascertain if agencies are adhering to the intent of 

 

32 MSPB, Building on OPM’s Hiring Improvement Memo, October 2019.

33 See MSPB, Federal Appointing Authorities: Cutting Through the Confusion, October 2019; MSPB, Identifying Talent through Technology—Automated Hiring 

Systems in Federal Agencies, August 2004, and MSPB, Evaluating Job Applicants: The Role of Training and Experience in Hiring, January 2014.

34 OPM Memorandum for Chief Human Capital Officers, OPM Special Study – Excepted Service Hiring Authorities: Their Use and Effectiveness in the Executive 

Branch, July 18, 2018.
36 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

the merit principles associated with fair and open competition and the fair and equitable treatment 

of all applicants. 

In addition, OPM found that many agencies had not established required policies for several 

excepted service hiring operations. For instance, only 56 percent of the agencies included in OPM’s 

policy review had developed guidelines describing how they handle applications for excepted service 

hiring; only 40 percent had policies for how to apply priority reemployment rights; and only half had 

a documented process for granting veterans’ preference. Lack of documentation and policies make it 

difficult to determine not only compliance with hiring rules and adherence to merit, but also 

whether agencies are implementing “more strategic, innovative, and targeted recruitment activities” 

than they could under competitive examining. 

Flexibilities. OPM found that agencies were not using the vast majority of excepted service hiring 

authorities available to them. Specifically, 92 percent of excepted service appointments made 

between FYs 2012–2016 used 11 of the 51 legal authorities. Low-use and non-use of a large number 

of authorities may indicate an opportunity to streamline the number of hiring authorities available to 

agencies. This finding echoes MSPB’s recommendation to streamline and consolidate competitive 

hiring authorities to make the process more transparent and understandable, found in MSPB’s2006 

report Reforming Federal Hiring: Beyond Cheaper and Faster.

35

Another area where agencies do not make optimal use of excepted flexibilities is in defining 

qualifications. The purpose of excepted authorities is to allow agencies to create the most practical 

assessment tools and methods when hiring for those positions. In fact, agencies are required to use 

agency-unique qualification standards or modified OPM standards to fit their specific needs for many 

positions. However, OPM found that a large number of agencies are simply applying established OPM 

qualification standards. MSPB pointed out in the report Identifying Talent through Technology—Automated 

Hiring Systems in Federal Agencies36 that using generic qualification standards and specialized experience 

definitions for competitive hiring reduce the ability to identify the best-qualified applicants. The ability 

to create unique standards was intended to help overcome this challenge. 

Significance

We previously recommended37 that agencies should properly prepare HR staff and hiring managers 

by ensuring they have the training and expertise to carry out their hiring responsibilities and hold 

them accountable for those responsibilities. Going forward, OPM noted they will use the results 

from their report to identify topics for training and guidance on excepted service hiring for HR staff 

and hiring managers.

OPM’s findings demonstrate that excepted service hiring has many of the same issues seen in 

competitive service hiring, despite the fact that these authorities are intended to make hiring simpler 

and more tailored to the needs of the agency. More and more, it seems, agencies are asking for 

hiring flexibilities that exempt them from competitive service hiring requirements. OPM’s report 

indicates, however, that even when hiring flexibilities exist, agencies are not necessarily using them, 

and when they do, they are not necessarily using them properly.38

 

35 MSPB, Reforming Federal Hiring: Beyond Cheaper and Faster, September 2006.

36 MSPB, Identifying Talent through Technology—Automated Hiring Systems in Federal Agencies, August 2004.

37 MSPB, Reforming Federal Hiring: Beyond Cheaper and Faster, September 2006.

38 MSPB, “OPM Studies Excepted Service Hiring,” Issues of Merit, September 2019, p. 3.
37 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Workforce Shaping

OPM undertook a number of initiatives to reshape the Federal workforce to improve employee 

performance and to improve services to the American people. In addition to MSP 5, these initiatives 

relate to MSP 3 (which states that “appropriate incentives and recognition should be provided for 

excellence in performance”) and MSP 6 (which states that employees “should be retained on the 

basis of the adequacy of their performance, inadequate performance should be corrected, and 

employees should be separated who cannot or will not improve their performance to meet required 

standards”). Among the workforce shaping initiatives recently undertaken were the 2018 Federal 

Workforce Priorities Report and reshaping and reskilling tools to help agencies prepare for the 

workforce of the future.

2018 Federal Workforce Priorities Report. In February 2018, OPM released the 2018 Federal 

Workforce Priorities Report.

39 The report was established by 5 CFR 250 subpart B, which was effective 

in April 2017. Its development was also in response to GAO’s recommendation to develop a 

Governmentwide human capital strategic plan.40 The report communicates key Governmentwide 

human capital priorities and recommends strategies to help inform agency strategic and human 

capital planning. OPM requests that agencies align their human capital management strategies to 

support the Federal Workforce Priorities Report, as demonstrated in their human capital operating 

plans. OPM asked agencies to select two of the six published priorities that they will support until 

the issuance of the next report in 2021.41

The six workforce priorities are:

 Succession planning and knowledge transfer. Conduct succession planning activities to retain 

and transfer institutional knowledge, as workforce reshaping efforts are undertaken.

 Deploying communication tools. Adopt tools that allow employees to easily connect, 

communicate, and collaborate with one another regardless of geographic location.

 Securing technological solutions for human capital analysis. OPM will seek to acquire or 

develop enterprise technological solutions to assist the Federal human capital community 

with human capital analysis.

 Expanding employee development opportunities. Provide employees with ample 

opportunities for continuous professional growth and skill development.

 Bolstering employee recognition programs. Administer robust programs to appropriately 

recognize and reward employees who demonstrate high levels of performance and 

significantly contribute to achieving organizational goals.

 Enhancing productivity through a focus on employee health. Encourage employees to 

engage in physical fitness activities during time spent commuting and being at work.

Reshaping and Reskilling Tools. In May 2019, OPM released a memorandum that transmitted 

three tools to help agencies reshape and reskill the Federal workforce.42 These tools include:

 The Executive Playbook for Workforce Reshaping, which helps senior leaders with 

informed, strategic decision making based on data;

 The Reskilling Toolkit, which assists HR professionals, managers, and employees as they 

design reskilling and upskilling opportunities based on employee strengths; and

 

39 OPM Memorandum, 2018 Federal Workforce Priorities Report, February 7, 2018.

40 GAO, Strategies to Help Agencies Meet Their Mission in an Era of Highly Constrained Resources, GAO-14-168, May 2014.

41 Future workforce priorities reports will be published in the first February of a Presidential term.

42 OPM Memorandum, Reshaping and Reskilling Tools to Help Agencies Prepare for the Workforce of the Future, May 22, 2019.
38 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

 Guidance for Change Management in the Federal Workforce, which provides practical 

advice for leaders and managers as they plan for changes that align agency culture, values, 

people, and behaviors to encourage the desired results.

According to OPM, these tools will help guide Federal leaders and managers as they make strategic 

decisions to modernize the way Government functions, support HR professionals and managers as 

they design and implement reshaping and reskilling/upskilling strategies, and provide employees 

with pathways to progress in their Federal service careers.

Significance

These activities occurred within the context of earlier workforce reshaping efforts that we discussed 

in the FY 2017 AR. As we noted then, any reshaping of the workforce should take place in 

accordance with the MSPs and be free from PPPs.43 Indeed, each of the documents referenced 

above states that agency activities associated with these efforts must be carried out consistent with 

the MSPs.

Not every issue facing the Federal workforce can be a top priority. Still, although hiring and 

recruitment was identified as a contributor to key challenges in the workforce, it was not identified 

as a priority—or as something OPM should take the lead to fix or for agencies to focus on. 

Similarly, the oft-maligned pay and position classification systems were not identified as workforce 

priorities and neither was increasing the diversity of the workforce.

MSPB research has found a relationship between higher levels of employee engagement and 

improved Federal agency outcomes.44 Agency leadership should realize that employee engagement 

might suffer during workforce reshaping efforts simply due to employee fears of changes that may 

or may not be planned in the workplace. Management should be as transparent as possible 

regarding any planned workplace changes and should effectively communicate to employees what 

the changes are and why they are occurring. 

Enhancing or changing the skills of the workforce is a viable way to close current and emerging 

skills gaps. GAO has focused attention on the importance of closing skills gaps in the Federal 

workforce for a number of years.45 The length of time that this issue has been categorized as a highrisk-area by GAO may point to the fact that systemic issues rather than intransigence on OPM’s or 

agencies’ part need to be overcome. For example, some of the first employees trained via the 

Federal Cybersecurity Reskilling Academy have found that the possession of that credential does not 

automatically qualify them for cybersecurity positions at the same pay grade they were at prior to 

entering the Academy.46 Whether or not this was a foreseeable outcome, issues to consider with 

reskilling include:

 What should the Government’s obligation be to those who have completed an accredited 

reskilling program—in terms of promised salary in the new field or a promised position at all?

 What is the proper place of reskilling among other strategies to close skills gaps (such as 

pipeline creation and maintenance, more agile hiring, etc.)?

 

43 MSPB, Annual Report for FY 2017, January 19, 2018, p. 45.

44 MSPB, The Power of Federal Employee Engagement, September 2008.

45 See, for example, GAO, High Risk Series An Update, GAO-11-278, February 2011, p. 22.

46 Margaret Weichert speech to the Federal Workforce and Management Summit, Training, Reskilling, and Developing the Workforce: Insights from the Office of 

Management and Budget, October 9, 2019.
39 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

 How best to ingrain skills gap identification and closure into the ongoing fabric of agency 

management?

 How to ensure that reskilling efforts target those areas that are, in fact, successfully 

trainable?47

 How to ensure that those selected for retraining are chosen through a fair and open process 

that is based on merit?

Work-Life Programs

In March 2018, OPM released the key findings of its 2017 Federal Work-Life Survey.48 OPM’s 

analysis of the survey indicated that there is a significant relationship between participation in worklife programs and optimal organizational performance, retention, and job satisfaction. OPM noted 

that these outcomes emphasize the value of work-life programs as strategic tools that support 

organizational effectiveness. At the same time, however, OPM also stated that there are 

opportunities for improvement through expanding support and reducing barriers to utilizing worklife programs.

GAO has recommended that OPM help agencies determine the value of their telework programs by 

providing clarifying guidance on options for developing supporting data for benefits and costs 

associated with agency telework programs.49 MSPB also recommended that OPM consider 

conducting a Governmentwide cost-benefit analysis of the various work-life programs to understand 

fully how they contribute to improved agency outcomes and the retention of valued employees. 

Alternatively, OPM should at least assist agencies in conducting cost-benefit analyses to identify the 

true worth of these strategic business practices.50 In July 2019, OPM released the Work-Life Program 

Evaluation Guide to help agencies with developing strategies to capture the benefits and costs 

associated with the use of work-life programs.51

Significance

Previous MSPB research found a relationship between higher levels of employee engagement and 

improved Federal agency outcomes. Specifically, in agencies where more employees were more 

engaged better program results were produced, employees used less sick leave, fewer employees filed 

EEO complaints, and there were fewer cases of workplace injury or illness.52

Although work-life programs are likely to contribute to higher levels of employee engagement, it is 

important to quantify the costs associated with these programs as well as the benefits that they bring 

to agencies through higher levels of employee engagement and improved outcomes for the taxpayer. 

Through such transparent analysis the availability (or non-availability) of certain work-life programs 

can be defended to agency managers, supervisors, and employees.

Prior to the OPM guidance designed to help agencies develop strategies to capture the benefits and 

costs associated with the use of work-life programs, some agencies had either curtailed employee 

 

47 Previous MSPB research found that some competencies may be more responsive to training than others. Knowledge competencies are highly 

trainable; language, social, and reasoning competencies are moderately trainable; and motivation and mental style competencies are less trainable. See, 

MSPB, Making the Right Connections—Targeting the Best Competencies for Training, February 2011.

48 OPM Memorandum, Federal Work-Life Survey Results, March 6, 2018.

49 GAO, Federal Telework—Better Guidance Could Help Agencies Calculate Benefits and Costs, GAO-16-551, July 2016.

50 MSPB, Annual Report for FY 2017, January 19, 2018, p. 48.

51 OPM Memorandum, Work-Life Program Evaluation Guide—Evidence-Based Strategies to Capture the Benefits and Costs, July 16, 2019.

52 MSPB, The Power of Federal Employee Engagement, September 2008.
40 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

telework programs or announced they were considering limiting them.

53 It is unclear how these 

decisions regarding telework relate to the OPM guidance or whether they were made based on 

OPM’s suggested cost-benefit analysis or some other methodology.

Employee Performance Management and Rewards

In addition to MSP 5, OPM initiatives in these areas relate to MSP 3 and MSP 6. Among these 

initiatives in FY 2019 were guidance to improve employee engagement and guidance on awards and 

performance management.

Guidance to Improve Employee Engagement. In October 2018, OPM released guidance in 

support of the President’s Management Agenda Cross-Agency Priority Goal 3 to improve 

performance management and engagement.54 According to Cross-Agency Priority Goal 3, each 

agency is to identify its bottom 20 percent organizational scorers on the Federal Employee Viewpoint 

Survey’s (FEVS) Employee Engagement Index (EEI). Agencies are then to target a 20 percent 

improvement on this survey-based measurement in those organizational units by the end of 2020.55

Significance

As we have stated in the past, continued OPM and agency attention to Federal employee 

engagement is appropriate. It is important, however, that policymakers and stakeholders recognize 

the limits as well as the value of employee engagement and its measures.56

First, it is plausible that any management attention directed at improving the workplace, agency 

leadership, or employee morale should have some positive effect on agency operations. It remains 

unclear, however, what effect improvements in the FEVS EEI will have on agency outcomes. 

Because OPM notes that the FEVS EEI does not directly measure employee engagement—

although it covers most, if not all, of the conditions likely to lead to employee engagement57—it is 

uncertain that improvements in the index would result in positive agency outcomes. It is also unclear 

whether past improvements in the FEVS EEI have been accompanied with actual improvements to 

agency outcomes.

Second, although agency leaders can influence the work environment and other drivers of 

employee engagement, they are far from the only factors that affect an employee’s level of 

engagement as measured by instruments such as the FEVS. In the short term, in particular, 

indicators of employee satisfaction and engagement can be greatly affected by externally-directed 

changes in policy, budget, or structure. Also, it may be necessary for agency leaders to undertake, in 

the long-term public or agency interest, actions that are disruptive to both organizations and 

individuals.58 In such situations, effective leadership could result in short-term decreases, rather 

than increases, in employee engagement. 

 

53 See, for example, Government Executive, “Agencies that Cut Telework Took a Beating in Annual Employee Survey,” October 30, 2018, describing the 

Departments’ of Agriculture and Education telework curtailment. See also Government Executive, “Survey: Five in Six HHS Employees May Consider 

Leaving if Telework is Restricted,” July 18, 2019.

54 OPM Memorandum for Chief Human Capital Officers, President‘s Management Agenda Cross-Agency Priority Goal 3: Improve Performance Management and 

Engagement, October 4, 2018.

55 Office of Management and Budget, President’s Management Agenda, Key Milestones—Improve Employee Performance Management and Engagement.

56 MSPB, Annual Report for FY 2015, February 29, 2016, pp. 57-58.

57 See for example, OPM, 2012 Federal Employee Viewpoint Survey Results Government Management Report, p. 12.

58 See MSPB, Managing Public Employees in the Public Interest, January 2013, pp. 15-17, for discussion of the perceived necessity for Federal leaders to make 

difficult or potentially controversial decisions such as eliminating obsolete or unnecessary functions or positions.
41 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Finally, employees themselves must be active participants in their own engagement. For example, 

“pride in one’s work” ultimately requires an individual willing to produce outstanding results and a 

personal understanding of the importance of those results to the American people.59 For these 

reasons, although executives should be accountable for efficient and effective use of the workforce 

and for taking steps to understand and sustain employee engagement, it may be counterproductive 

to hold agencies or individual executives accountable for a particular increase (or decrease) in any 

measure of employee engagement, regardless of its source.

Guidance on Awards and Performance Management. In July 2019, OPM released two 

memoranda regarding awards and applying rigor to the performance management process.60 OPM 

suggested that agencies develop performance standards that are sufficiently specific so that they 

provide firm benchmarks toward which employees can aim their performance and that are not 

susceptible to a performance action based on whim instead of considered judgment. 

Agency performance management programs (among other things) form a basis for rewarding 

excellence in employee performance and reinforce a high-performing organization culture. As 

effective awards programs support the retention of high-performing employees, OPM instructed 

agencies to allocate awards in a manner that provides meaningfully greater rewards to top 

performers, and make meaningful distinctions between employees where performance is concerned. 

It also encouraged agencies to reexamine the way they distribute awards. Currently, most awards are 

tied to a formal, annual performance rating. OPM noted that the ongoing use of awards and 

recognition throughout the year, however, is particularly important as agencies address workforce 

challenges and look for opportunities to reward and recognize high-performing employees and those 

with talent critical to mission achievement.

Significance

Too often, the annual performance management process boils down to short exchanges to inform 

employees of their rating and obtain a signature. Does the process help improve performance, 

identify poor performers, motivate employees to do a better job, or recognize top performers? 

Responses to MSPB’s 2016 merit principles survey (MPS) suggest that the answer to those questions 

is “no.” Less than two-thirds (63 percent) of respondents felt that their appraisal was an accurate 

reflection of their performance, while only 55 percent agreed that the standards used to appraise 

their performance are appropriate. That is not an overwhelming endorsement of the exercise.61

Federal workforce data from 2017 suggests that the annual performance rating does not do a good 

job of making distinctions in employee performance. Over 99 percent of all permanent, full-time 

employees received at least a fully successful rating. For those agencies with 5-level appraisal 

systems, about 75 percent of employees were rated in the top two levels. Even in systems with only 

three levels, where the top rating should be reserved for the top performers, almost half were rated 

at the top level. Also, MPS results show that supervisors do not find the appraisal to be particularly 

helpful in managing development, promotions, retention, or dealing with poor performers.62

 

59 Pride in one’s work is almost universally recognized as an indicator or outcome of employee engagement. See, for example, GAO, Federal Workforce:

Preliminary Observations on Strengthening Employee Engagement During Challenging Times, GAO-15-529T, April 16, 2015; and MSPB, The Power of Federal 

Employee Engagement, September 2008.

60 OPM Memorandum for Executive Departments and Agencies, Guidance on Awards for Employees and Agency Workforce Fund Plan, July 12, 2019; and 

OPM Memorandum for Heads of Executive Departments and Agencies, Applying Rigor in the Performance Management Process and Leveraging Awards 

Programs for a High-Performing Workforce, July 12, 2019.

61 MSPB, “Get Ready, It’s Performance Appraisal Time,” Issues of Merit, September 2019, p. 3.

62 MSPB, “Get Ready, It’s Performance Appraisal Time,” Issues of Merit, September 2019, p. 3.
42 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

Differences between the ideal and actual practice of performance appraisal, and broader questions 

about the value of the process, are not unique to the Federal Government. Nevertheless, these 

results suggest that Federal agencies may need to reconsider both the purpose(s) of performance 

evaluation, and how they are conducting performance evaluation. Some issues that agencies (and 

employees) might consider include the following:

 The degree to which its performance appraisal emphasizes consequences or learning, and 

personnel actions (such as ratings and awards) or work actions (such as accomplishing goals 

or changing behaviors);

 The frequency and focus of communication, particularly the communication between the 

employee and supervisor;

 The degree to which the organization relies on the performance elements and standards, and 

individual supervisors, to provide feedback to employees;

 The degree to which the organization relies on formal, extrinsic rewards (such as pay raises 

or performance awards) to recognize and motivate excellence; and 

 Whether and how technology is used to help managers and employees plan and measure 

performance, both inside and outside the formal appraisal process.
43 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

FINANCIAL SUMMARY

Fiscal Year 2019 Financial Summary

as of

September 30, 2019

(dollars in thousands)

FY 2019 Appropriations

FY 2019 Appropriation $ 44,490

Civil Service Retirement and Disability Trust Fund 2,345

Total $ 46,835

Obligations Charged to FY 2019 Funds

Personnel Compensation $ 23,618

Personnel Benefits 7,397

Travel of Things 82

Travel of Persons 137

Rents, Communications and Utilities 4,872

Printing and Reproduction 39

Other Services 2,833

Supplies and Materials 96

Equipment 619

Reimbursable Obligations 2,345

Total $ 42,038
44 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

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45 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

LIST OF ABBREVIATIONS AND ACRONYMS

AFR Annual Financial Report

AJ Administrative judge

ALJ Administrative law judge

ALOC Acceptable Level of Competence

APHIS USDA’s Animal and Plant Health Inspection Service

APR-APP Annual Performance Report and Annual Performance Plan

AR Annual Report

BFS Treasury’s Bureau of Financial Services

CAFC Court of Appeals for the Federal Circuit

CBA Collective bargaining agreement

CIO Chief Information Officer

CRS Congressional Research Service

CSRA Civil Service Reform Act of 1978

CSRS Civil Service Retirement System

DoD Department of Defense

EEI Employee Engagement Index

EEO Equal employment opportunity

EEOC Equal Employment Opportunity Commission

EO Executive Order

FERS Federal Employees Retirement System

FERCCA Federal Erroneous Retirement Coverage Corrections Act

FEVS Federal Employee Viewpoint Survey

FOs Field offices

FTC Federal Trade Commission

FY Fiscal year

GAO Government Accountability Office

GPRAMA Government Performance and Results Act Modernization Act of 2010

HCBRM (Federal) Human Capital Business Reference Model

HCR Human Capital Reviews

HQ Headquarters

HR Human resources

IoM Issues of Merit

IRA Individual right of action

IT Information technology

MPS Merit principles survey

MSPs Merit system principles

MSPB Merit Systems Protection Board

NBIB National Background Investigations Bureau

NDAA National Defense Authorization Act

NFC USDA’s National Finance Center

OMB Office of Management and Budget

OPE MSPB’s Office of Policy and Evaluation

OPM Office of Personnel Management

ORO MSPB’s Office of Regional Operations

OSC Office of Special Counsel

PFR Petition for review

PIO Performance Improvement Officer
46 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

PIV Personal identity verification

PPPs Prohibited personnel practices

ROs Regional offices

SES Senior Executive Service

SME Subject matter experts

SP Strategic Plan

U.S.C. United States Code

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act of 1994

VA Department of Veterans Affairs

VEOA Veterans Employment Opportunities Act of 1998

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
47 Merit Systems Protection Board Annual Report for FY 2019 January 31, 2020

U.S. Merit Systems Protection Board

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Washington, DC 20419

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