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 █ █ █ █ █ █ █ █ █ █ █ █ U.S. Merit Systems █ █ Protection Board █ █ █ █ █ █ █ █ █ █ █ █ █ █ Annual Report █ █ for Fiscal Year 1995 █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █ █

Submitted to the President and the

Congress of the United States
U.S. Merit Systems Protection Board 

Washington, DC 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

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

Systems Protection Board. The report reviews the significant activities of the Board during fiscal year 1995, including the 

Federal employee appeals and other cases decided by the Board. 

The Board and its regional and field offices closed 13,163 cases during fiscal year 1995-a 24 percent increase over the 

number of cases closed in the previous fiscal year. The Board's administrative judges decided 10,888 appeals, stay requests, 

and addendum cases. The 3-member Board decided 2,226 cases under its appellate jurisdiction, principally petitions for 

review (PFRs) of administrative judges' initial decisions. The Board also completed action on 49 cases arising under its 

original jurisdiction, principally prohibited personnel practice and Hatch Act cases brought by the Special Counsel. 

Overall, the Board is providing more responsive service to its customers despite a 16 percent reduction in its 

workforce and a 40 percent increase in caseload since 1993. The average processing time at Board headquarters for PFRs of 

initial decisions by administrative judges was 96 days-a historic low. The average processing time in the regional and field 

offices was also 96 days. This means that, on average, an appeal to the Board was processed through both levels of Board 

review in just over six months. This speedy processing is important because approximately 90 percent of the cases that come 

to the Board are appeals of agency personnel actions. Early resolution of these disputes benefits all parties, as well as the 

taxpayers who fund Government activities. 

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

upheld by, its principal reviewing court, the U.S. Court of Appeals for the Federal Circuit. Of the 654 final Board decisions 

reviewed by the court in fiscal year 1995, 94 percent were unchanged by the court's decisions. 

 With respect to its statutory mission to conduct studies of the merit systems and to review the significant actions of 

the Office of Personnel Management (OPM), the Board completed three reports during the fiscal year, including an update of 

its previous studies of sexual harassment in the Federal workplace. 

Respectfully submitted 

Ben L. Erdreich 

Chairman 

 Beth S. Slavet Antonio C. Amador 

 Vice Chairman Member 
TABLE OF CONTENTS

BOARD MISSION AND JURISDICTION...............................6 

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

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

 REGIONAL OFFICIALS ..........................................................12 

REGIONAL AND FIELD OFFICE JURISDICTIONS ............13 

FISCAL YEAR 1995 CASE PROCESSING - 

 STATISTICAL HIGHLIGHTS .................................................14 

 ADJUDICATION ......................................................................21 

 LITIGATION.............................................................................31 

 STUDIES ...................................................................................33 

 INFORMATION SERVICES....................................................35 

 ADMINISTRATION .................................................................38 

APPENDIX A - SIGNIFICANT BOARD DECISIONS 

APPELLATE JURISDICTION CASES....................................41 

APPENDIX B - SIGNIFICANT BOARD DECISIONS 

ORIGINAL JURISDICTION CASES.......................................45 

APPENDIX C - SIGNIFICANT COURT DECISIONS............46 

APPENDIX D - MERIT SYSTEMS STUDIES AND 

REVIEWS OF OPM SIGNIFICANT ACTIONS......................51 

 CUSTOMER SERVICE STANDARDS ...................................53 

5
BOARD MISSION AND 

JURISDICTION

MISSION

The U.S. Merit Systems Protection Board 

(MSPB) was established by the Civil Service 

Reform Act of 1978 (CSRA), Public Law 95-

454, as a successor agency to the Civil Service 

Commission. It is an independent, quasi-judicial 

agency in the Executive Branch that serves as 

the guardian of Federal merit systems. 

The Board's mission is to ensure that Federal 

employees are protected against abuses by 

agency management, that Executive Branch 

agencies make employment decisions in 

accordance with the merit system principles, and 

that Federal merit systems are kept free of 

prohibited personnel practices. The Board 

accomplishes its mission by: 

• Hearing and deciding employee appeals from 

agency personnel actions (appellate 

jurisdiction); 

• Hearing and deciding cases brought by the 

Special Counsel involving alleged abuses of 

the merit systems, and other cases arising 

under the Board's original jurisdiction; 

• Conducting studies of the civil service and 

other merit systems in the Executive Branch 

to determine whether they are free of 

prohibited personnel practices; and 

• Providing oversight of the significant actions 

and regulations of the Office of Personnel 

Management (OPM) to determine whether 

they are in accord with the merit system 

principles and free of prohibited personnel 

practices. 

6 

JURISDICTION

Appellate Jurisdiction 

The agency actions that Federal employees 

may appeal to the Board include: adverse actions 

(removals, suspensions of more than 14 days, 

reductions in grade or pay, and furloughs of 30 

days or less), performance-based removals or 

reductions in grade, denials of within-grade 

increases, certain reduction-in-force (RIF) 

actions, denials of restoration to duty or 

reemployment rights, and removals from the 

Senior Executive Service (SES) for failure to be 

recertified. Determinations by OPM in 

employment suitability and retirement matters 

are also appealable to the Board. 

When an issue of prohibited discrimination 

is raised in connection with an appealable action, 

the Board has jurisdiction over both the 

appealable action and the discrimination issue. 

Such appeals are termed "mixed cases." In these 

cases, an appellant may ask the Equal 

Employment Opportunity Commission (EEOC) 

to review the final decision of the Board. If the 

EEOC disagrees with the Board's decision on the 

discrimination issue, the case is returned to the 

Board. The Board may concur with EEOC, 

affirm its previous decision, or affirm its 

previous decision with modifications. If the 

Board does not concur in the EEOC decision, the 

case is referred to the Special Panel for a final 

decision. (The Special Panel is composed of a 

Chairman appointed by the President, one 

member of the Board, and one EEOC 

commissioner.) 

Under the Whistleblower Protection Act of 

1989 (WPA), personnel actions that are not 

normally appealable to the Board may result in 

the right to a Board appeal under certain 

circumstances. Included are appointments, 

promotions, details, transfers, reassignments, and 

decisions concerning pay, benefits, awards, 

education, or train- 
ing. Such an action may be appealed to the 

Board only if the appellant alleges that the action 

was taken because of whistleblowing, and if the 

appellant first filed a complaint with the Special 

Counsel and the Special Counsel did not seek 

corrective action from the Board, 

For the Board to have jurisdiction over an 

appeal, it must possess jurisdiction over both the 

action and the individual filing the appeal. The 

employees and others (e.g., applicants for 

employment, annuitants in retirement cases) who 

may appeal specific actions vary in accordance 

with the law and regulations governing the 

specific action. For some actions, classes of 

employees, such as political appointees, and 

employees of specific agencies are excluded. 

With respect to adverse actions, which 

account for almost half of all appeals to the 

Board, the following categories of employees 

have appeal rights: (1) employees in the 

competitive service and excepted service 

employees with veterans preference (called 

"preference eligibles") who have completed their 

probationary period; (2) non-preference eligible 

employees in the excepted service (excluding 

those in the Postal Service and certain other 

agencies) who have completed two years current 

continuous service in an Executive agency; and 

(3) non-preference eligible supervisors and 

managers in the Postal Service. 

Original Jurisdiction

Cases that arise under the Board's original 

jurisdiction include: 

• Corrective and disciplinary actions brought 

by the Special Counsel against agencies or 

Federal employees who are alleged to have 

committed prohibited personnel practices, or 

to have violated 

certain civil service laws, rules or 

regulations; 

• Requests for stays of personnel actions 

alleged by the Special Counsel to result 

from prohibited personnel practices; 

• Disciplinary actions brought by the Special 

Counsel alleging violation of the Hatch Act; 

• Certain proposed actions brought by 

agencies against administrative law judges; 

• Requests for review of regulations issued by 

the Office of Personnel Management, or of 

implementation of OPM regulations by an 

agency; and 

• Informal hearings in cases involving 

proposed performance-based removals from 

the Senior Executive Service. 

Judicial Review

With two exceptions, judicial review of final 

Board decisions in both appellate and original 

jurisdiction cases lies in the U.S. Court of 

Appeals for the Federal Circuit. Board decisions 

in "mixed cases" may be appealed to the 

appropriate U.S. district court. (A Special Panel 

decision also may be appealed to the appropriate 

U.S. district court.) If review of all issues except 

the discrimination issue is requested, however, a 

"mixed case" appellant may elect review by the 

Federal Circuit. In Hatch Act cases involving 

state or local Government employees, judicial 

review lies first in the U.S. district courts and 

then in the regional courts of appeals. 

The Director of OPM may petition the 

Board for reconsideration of a final decision. 

The Director also may seek judicial review in the 

Federal Circuit of Board decisions that have a 

substantial impact on a civil service law, rule, 

regulation, or policy. 

7 
BOARD MEMBERS

The bipartisan Board consists of a 

Chairman, a Vice Chairman and a Member, with 

no more than two of its three members from the 

same political party. Board members are 

appointed by the President, confirmed by the 

Senate, and serve overlapping, non-renewable 7-

year terms. 

8 

Chairman 

BEN L. ERDREICH became Board 

Chairman on July 2, 1993, following his 

nomination by President Clinton and 

confirmation by the Senate. His term 

appointment expires March 1, 2000. Previously, 

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

the representative of the 6th District of Alabama. 

He was a member of the Committee on Banking, 

Finance and Urban Affairs and chaired its 

Subcommittee on Policy Research and 

Insurance. Mr. Erdreich was a Member of the 

Jefferson County (Alabama) Commission from 

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

the firm of Cooper, Mitch & Crawford, 

Attorneys, in Birmingham, Alabama. He served 

in the Alabama House of Representatives from 

1970 to 1974. He is a graduate of Yale 

University and received his J.D. degree from the 

University of Alabama School of Law. He is 

admitted to the Alabama and District of 

Columbia bars and is a member of the Federal 

Circuit, District of Columbia, Alabama, and 

Birmingham bar associations. 
Vice Chairman

B

ETH 

S. 

SLA

VET 

took 

the 

oath 

of 

office 

as 

Vice 

Chair

man 

and 

memb

er of 

the 

U.S. Merit Systems Protection Board on August 

15, 1995, following her nomination by President 

Clinton and confirmation by the Senate. Her 

term appointment expires March 1, 2002. Ms. 

Slavet served as Labor Counsel to the 

Committee on Labor and Human Resources of 

the U.S. Senate from March 1993 until January 

1995. Previously, she was Legislative Counsel 

and Staff Director for U.S. Representative 

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

Ms. Slavet was an attorney in private practice in 

Washington, DC, representing public and private 

sector unions and employees. Prior to that, she 

served as the staff attorney to the American 

Federation of Government Employees Local 

1812 in Washington, DC. She is a graduate of 

Brandeis University and received her J.D. degree 

from the Washington University School of Law. 

She is admitted to the District of Columbia Bar. 

Member 

ANTONIO C. AMADOR became Vice 

Chairman of the Board on November 1, 1990, 

follo

wing 

his 

nomi

natio

n by 

Presi

dent 

Bush 

and 

confir

matio

n by 

the 

Senat

e. 

Curre

ntly, 

he 

serve

s as Member of the Board. His term 

appointment expires March 1, 1997. At the time 

of his appointment to the Board, Mr. Amador 

was Deputy Director, Program Review Branch, 

Employment Development Department of the 

State of California. Previously, he served as 

Director of the California Youth Authority, as 

Chairman of the Youthful Offender Parole Board 

in California, and as a police officer in the Los 

Angeles Police Department. He received his law 

degree from the McGeorge School of Law, 

University of the Pacific. 

9 
BOARD ORGANIZATION

The Chairman, Vice Chairman, and 

Member adjudicate the cases brought to the 

Board. Each has his/her individual office. 

The Chairman, by statute, is the chief 

executive and administrative officer of the 

Board. Office heads report to the Chairman 

through the Chief of Staff. 

The Office of Regional Operations

manages the appellate functions of the 

MSPB regional offices. The five regional offices 

(including five field offices) receive and process 

the initial appeals filed with the Board. 

Administrative judges in the regional and field 

offices have the primary function of adjudicating 

appeals and issuing fair, timely, and wellreasoned decisions. 

The Office of Appeals Counsel assists the 

Board in adjudicating petitions for review of 

initial decisions issued by its administrative 

judges and requests for review of arbitration 

decisions in certain cases. The office analyzes 

the petitions, conducts legal research, and 

submits proposed opinions to the Board for final 

adjudication. It also conducts the Board's 

petition for review settlement program, processes 

interlocutory appeals of rulings made by 

administrative judges, makes recommendations 

on reopening appeals on the Board's own motion, 

and provides research and policy memoranda to 

the Board on legal issues. 

The Office of the Administrative Law 

Judge adjudicates Hatch Act cases, corrective 

and disciplinary action complaints brought by 

the Special Counsel, proposed agency actions 

against administrative law judges, and other 

cases assigned by the Board. 

10 

The Office of the Clerk of the Board 

receives and processes cases filed with the 

Board, rules on certain procedural matters, and 

issues the Board's Opinions and Orders. The 

office also manages the Board's electronic 

bulletin board files, certifies official records to 

the courts and Federal administrative agencies, 

maintains the Board's law library, manages the 

Board's records, and administers the Board's 

Freedom of Information Act, Privacy Act, and 

Government in the Sunshine Act programs. 

The Office of the General Counsel, as 

legal counsel to the Board, provides advice to the 

Board and its organizational components on 

matters of law arising in day-today operations. It 

represents the Board in litigation and prepares 

proposed decisions and orders for the Board in 

original jurisdiction cases, compliance referral 

cases, and other assigned cases. The office 

coordinates the Board's legislative policy, 

congressional relations, and public affairs 

functions, and produces the agency's annual 

report to the President and the Congress and 

public information publications. The office also 

conducts the Board's ethics program and plans 

and directs audits and investigations. 

The Office of Policy and Evaluation 

carries out the Board's statutory responsibility to 

conduct special studies of the civil service and 

other merit systems, including annual oversight 

reviews of the Office of Personnel Management. 

Reports of these studies are directed to the 

President and the Congress. The office also 

provides assistance to Federal departments and 

agencies seeking to improve agency operations 

through more effective human resources 

management. 

The Office of Equal Employment 

Opportunity plans, implements, and evaluates 

the Board's equal employment opportunity 

(EEO) programs. It processes 
complaints of alleged discrimination and 

furnishes advice and assistance on affirmative 

action initiatives to the Board's managers and 

supervisors. 

The following three administrative divisions 

operate under the supervision of the Chief of 

Staff: 

The Financial and Administrative 

Management Division administers the budget, 

accounting, procurement, property management, 

physical security, and general services functions 

of the Board. It also develops and coordinates 

internal management programs and projects, 

including review of internal controls 

agencywide. 

The Human Resources Management 

Division manages personnel programs and 

assists managers, employees, and 

applicants for employment. It administers 

staffing, classification, employee relations, 

performance management, payroll, personnel 

security, and training functions. 

The Information Resources Management 

Division develops, implements, and maintains 

the Board's automated information systems in 

order to help the Board manage its caseload 

efficiently and carry out its administrative and 

research responsibilities. 

NOTE: The description of office functions 

above and the accompanying Organization 

Chart reflect the MSPB organization at the time 

of publication of this report. During FY 1995, 

the Office of Regional Operations and the Office 

of the Administrative Law Judge were a single 

office under the direction of the Administrative 

Law Judge,

11 
 

REGIONAL OFFICIALS 

12 
REGIONAL AND FIELD 

OFFICE JURISDICTIONS 

Atlanta Regional Office

Alabama, Florida, Georgia, Mississippi, South 

Carolina, and Tennessee 

Central Regional Office

Illinois; Indiana; Iowa; Kansas City, Kansas; 

Kentucky; Michigan; Minnesota; Missouri; Ohio; and 

Wisconsin 

Dallas Field Office

Arkansas, Louisiana, Oklahoma, and Texas 

Northeastern Regional Office

Delaware; Maryland (except the counties of 

Montgomery and Prince George's); New Jersey 

(except the counties of Bergen, Essex, Hudson, and 

Union); Pennsylvania; and West Virginia 

Boston Field Office

Connecticut, Maine, Massachusetts, New 

Hampshire, Rhode Island, and Vermont 

New York Field Office

New Jersey (counties of Bergen, Essex, Hudson, and 

Union); New York; Puerto Rico; and Virgin Islands 

Washington Regional Office

Washington, DC; Maryland (counties of 

Montgomery and Prince George's); North Carolina; 

Virginia; and all overseas areas not otherwise 

covered 

Western Regional Office

California and Nevada 

Denver Field Office

Arizona, Colorado, Kansas (except Kansas City), 

Montana, Nebraska, New Mexico, North 

Dakota, South Dakota, Utah, and Wyoming 

Seattle Field Office

Alaska, Hawaii, Idaho, Oregon, Washington, and 

Pacific overseas areas 

13 
FISCAL YEAR 1995 CASE PROCESSING 

STATISTICAL HIGHLIGHTS 

CASES DECIDED BY MSPB IN FY 1995

Regional/Field Office Decisions:

 Initial Appeals 9,594 

 Addendum Cases1 l,174 

 Stay Requests 2 120 

TOTAL REGIONAL/FIELD OFFICES 10,888

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Initial Appeals 1,935 

 PFRs - Addendum Cases 1 188 

 Reviews of Stay Request Rulings 0 

 Requests for Stay of Board Order 6 

 Reopenings 3 14 

 Court Remands 16 

 Compliance Referrals 60 

 EEOC Non-concurrence Cases 1 

 Arbitration Cases 6 

 Subtotal 2,226 

 Original Jurisdiction 49 

TOTAL BOARD 2,275

TOTAL BOARD + RO/FOs 13,163

1

 Includes requests for attorney fees, requests for compensatory damages (discrimination cases only), petitions for 

enforcement, Board remand cases, and court remand cases.

2

 Includes 77 stay requests in whistleblower cases and 43 in non-whistleblower cases. (Stay requests are authorized 

in whistleblower cases only. Appellants, however, sometimes file stay requests in cases in which no whistleblower 

issues are involved.)

3

 Includes 6 cases reopened by the Board on its own motion and 8 cases where OPM requested reconsideration.

14
KINDS OF APPELLATE 

 JURISDICTION CASES

The kinds of appellate jurisdiction cases in 

which the Board's administrative judges issue initial 

decisions or orders are: 

• Appeal (or Initial Appeal) - A request by an 

appellant that the Board review an agency 

action. 

• Stay Request - A request that the Board order a 

stay of an agency action (authorized only where 

the appellant alleges that the action was or is to 

be taken because of whistleblowing). 

• Motion for Attorney Fees - A request by an 

appellant who prevails in an appeal that the 

Board order the agency to pay the appellant's 

attorney fees. 

• Request for Compensatory Damages - A request 

by an appellant who prevails in a mixed case 

appeal on the basis of discrimination for 

payment of compensatory damages under the 

Civil Rights Act of 1991. 

• Request for Consequential Damages - A request 

by an appellant who prevails in a whistleblower 

appeal for payment of consequential damages, as 

authorized by 5 U.S.C. §1221. 

• Petition for Enforcement - A request by a party 

to an appeal that the Board enforce its final 

decision. 

• Remand - A case returned to an administrative 

judge by the Board or court, after an initial 

decision has been issued, for additional 

processing and issuance of a new initial 

decision. 

Attorney fee cases, petitions for enforcement, 

requests for damages, and remands, as a group, are 

termed "addendum cases" by the Board. 

Approximately 20 percent of initial appeals 

decided result in the filing of a petition for review at 

Board headquarters. Initial decisions in addendum 

cases and orders issued on stay requests are also 

subject to review by the Board. In addition, the 

Board has authority to review an arbitrator's award 

when the subject of the grievance is an action 

appealable to the Board and the grievant raises a 

discrimination issue in connection with the action. 

The kinds of appellate jurisdiction cases in which the 

Board issues final decisions or orders are: 

• Petition for Review - A request by a party that 

the Board review an initial decision of an 

administrative judge. A petition review may be 

filed with respect to an initial decision on an 

appeal or in an addendum case. 

• Request to Review Stay Ruling - A request by a 

party that the Board review an administrative 

judge's order ruling on a stay request. 

• Petition to Review Arbitrator's Award - A 

request that the Board review an arbitrator's 

award where the employee has grieved an action 

appealable to the Board and the employee raises 

an issue of prohibited discrimination. 

• Reopening on the Board's Own Motion - A case 

that the Board reopens on its own motion, to 

reconsider either an initial decision of an 

administrative judge or a final Board decision. 

• OPM Request for Reconsideration - A request 

by the Director of OPM that the Board 

reconsider a final decision. 

• Court Remand - A case returned to the Board by 

a court, after an appellant or the Director of 

OPM has sought judicial review of a final Board 

decision, for 

15 
 issuance of a new decision. Also, a case 

returned by a court where the Board has 

requested remand. 

• EEOC Non-concurrence - A mixed case 

returned to the Board by the EEOC, after an 

appellant has sought EEOC review of a Board 

decision, in which the EEOC does not concur 

with the Board decision on the discrimination 

issue. 

• Compliance Referral - A case referred to the 

Board by an administrative judge for 

enforcement of a final Board decision, upon the 

administrative judge's finding that a party is not 

in compliance. 

• Request for Stay of Board Order - A request by 

a party that a final order of the Board be stayed 

pending judicial review or a request for 

reconsideration by the Director of OPM. 

APPELLATE CASE PROCESSING IN 

FISCAL YEAR 1995

Regional and Field Offices 

• Case Receipts - The regional and field offices 

received 9,978 new cases in FY 1995, compared 

to 9,965 in the previous fiscal year. Appeals and 

related cases arising from the Postal Service 

restructuring accounted for 18 percent of all 

receipts. At the end of the fiscal year, there 

were 2,335 cases pending in the regional and 

field offices, down 28 percent from the number 

pending at the end of the previous fiscal year. 

16 

• Cases Decided - The 10,888 cases decided by 

administrative judges in FY 1995 represented an 

increase of 27 percent from the previous fiscal 

year. Of the cases decided, 9,594 were initial 

appeals and 1,174 were addendum cases. 

Decisions on initial appeals were up 27 percent 

from the previous year, and those in addendum 

cases were up 29 percent. There were 120 

orders ruling on stay requests-77 in 

whistleblower cases and 43 in nonwhistleblower cases. (Stay requests are 

authorized in whistleblower cases only. 

Appellants, however, sometimes file stay 

requests in cases in which no whistleblower 

issues are involved.) Decisions on stay requests 

increased 9 percent. 

•

• Disposition - Of the 9,594 initial appeals 

decided, 5,723 (60 percent) were dismissed. Of 

the dismissals, 59 percent were for lack of 

jurisdiction, agency cancellation of the action, or 

appellant withdrawal of the appeal, 31 percent 

were dismissed as untimely, and 10 percent were 

dismissed without prejudice to later refiling. 

(The percentage of cases dismissed as untimely 

was substantially higher than in previous years 

because of the impact of appeals resulting from 

the Postal Service reorganization.) The 

accompanying charts show the outcomes of 

appeals that were not dismissed and the 

disposition of appeals adjudicated on the merits. 
OUTCOME OF FY 1995 APPEALS NOT DISMISSED

Other

(8) 0%

Affirmed

(1,278) 33%

Mitigated

(104) 3%

Reversed

(656) 17%

Settled

(1,825) 47%

Based on 3,871 initial appeals not dismissed. 

COMPARISON OF MSPS REGIONAL CASE DECISIONS 

FISCAL YEARS 1994 AND 1995

Cases Decided in FY 1994 FY 1995 % Increase 

 Regional/Field Offices 

Initial Appeals 7,530 9,594 + 27% 

Addendum Cases 912 1,174 + 29% 

Stay Requests 110 120 + 9% 

 TOTAL 8,552 10,888 + 27% 
DISPOSITION OF INITIAL APPEALS ADJUDICATED

ON THE MERITS IN FY 1995

Mitigated

(104) 5%

Reversed

(656) 32%

Other

(8) 0%

Affirmed

(1,278

62%

Based on 2,046 adjudicated initial appeals. 

Percentages do not total 100% because of rounding. 

• Settlement Rate - Of the 3,871 appeals that 

were not dismissed, 1,825 were settled, for an 

overall settlement rate of 47 percent. The 

settlement rate for adverse action cases was 64 

percent; for performance cases, 70 percent; and 

for denials of within-grade increases, 82 

percent. 

• Relief for Appellants - Considering the number 

of appeals settled (1,825) and those in which 

the agency action was reversed or mitigated 

(760), appellants received relief in about twothirds of the appeals that were not dismissed. 

• Processing Time - The average processing time 

for initial appeals and addendum cases was 96 

days, compared to 81 days in FY 1994. The 

increase in processing 

time reflects both the increase in number of 

cases decided and an 8 percent reduction in 

regional and field office staff. Of the initial 

appeals decided, 84 percent were decided 

within 120 days. 

• Types of Actions Appealed - Of the initial 

appeals decided, 46 percent were appeals of 

agency adverse actions, 24 percent were RIF 

appeals, and 2 percent were appeals of 

performance-based actions. Appeals arising 

from the Postal Service restructuring 

accounted for 68 percent of the RIF appeals 

and 22 percent of the adverse action appeals. 

Retirement cases (both CSRS and FERS) 

accounted for 15 percent of total appeals 

decided ' and the remainder involved other 

types of agency actions. 

18 
TYPES OF INITIAL APPEALS DECIDED IN FY 1995

Individual Right of Action (180) 2%

CSRS Retirement: Overpayment (215) 2% 

CSRS Retirement: Disability (213) 2%

CSRS Retirement: Legal (884) 9%

FERS Retirement: (234) 2%

Other Appeals (611) 6%

Denial of Within Grade (56) 1%

Termination of Probationers (224) 2%

Reduction in Force (2,303) 24%

Suitability (73) 1%

Adverse Action (4,456) 46%

Performance (145) 2%

Total Number of Initial Appeals: 9,594 

Percentages do not total 100% because of rounding. 

• Whistleblower Appeals - There were 505 

whistleblower appeals and stay requests 

decided. Of this number, 180 were 

individual right of action (IRA) appeals in 

which the appellant was required to exhaust 

the procedures of the Office of Special 

Counsel, 248 were direct appeals to the 

Board that included an allegation of reprisal 

for whistleblowing, and 77 were requests to 

stay an action allegedly based on 

whistleblowing. 

• Relief for Appellants in Whistleblower 

Appeals - Of the 428 whistleblower appeals 

decided (180 IRA appeals and 248 appeals 

of otherwise appealable actions), 251 (59 

percent) were dismissed. In the 

other 177 whistleblower appeals, appellants 

received relief--through settlement, reversal, 

or mitigation--in 111 (63 percent). 

• Mixed Cases - Allegations of discrimination 

were raised in 2,472 of the initial

discrimination in (98 percent) and a finding 

of discrimination in 10 (2 percent). 

19 
Board Headquarters

• Case Receipts - At headquarters, the Board 

received 2,160 new petitions for review and 

other appellate jurisdiction cases in FY 1995, an 

increase of 14 percent over the number received 

the previous fiscal year. PFRs of initial 

decisions in appeals resulting from the Postal 

Service restructuring accounted for 28 percent of 

all PFR receipts. At the end of the fiscal year, 

there were 522 appellate jurisdiction cases 

pending at headquarters, down 11 percent from 

the number pending at the end of the previous 

fiscal year. 

• Cases Decided - The 2,226 appellate jurisdiction 

cases decided by the 3-member Board in FY 

1995 represented an increase of 10 percent from 

the previous fiscal year. Of the cases decided, 

1,935 were petitions for review of initial 

decisions on appeals, 188 were petitions for 

review of initial decisions in addendum cases, 

and 103 were other appellate jurisdiction cases. 

• Disposition - Of the 1,935 petitions for review 

of initial decisions on appeals, 7 percent were 

dismissed, 2 percent were settled, and 78 percent 

were denied for failure to meet the criteria for 

review. The Board reviewed the remaining 13 

percent-made up of 5 percent denied but 

simultaneously reopened by the Board and 8 

percent granted. 

• Outcome of PFRs Reviewed - Of the decisions in 

the 246 PFRs that were granted or denied but 

simultaneously reopened, percent affirmed the 

initial decision, percent reversed it, 27 percent 

remanded the case to the administrative judge, 

and 2 percent mitigated the agency action. In 

the remaining 11 percent, the initial decision 

was vacated or the case was forwarded to a 

regional/field office for processing. 

• Processing Time - The average processing time 

for all petitions for review (on both initial 

appeals and addendum cases) was 96 days, 

compared to 161 days in FY 1994. This 40 

percent reduction in processing time was 

achieved in spite of the increased number of 

cases decided and a 12 percent reduction in 

headquarters attorneys who process PFRs. The 

Board processed 81 percent of the PFRs on 

initial appeals in 110 days or less, averaging 57 

days. 

Judicial Review

• The U.S. Court of Appeals for the Federal 

Circuit reviewed 654 final Board decisions in 

FY 1995. Of this number, 94 percent were left 

unchanged (case dismissed or Board decision 

affirmed). The court affirmed the Board 

decision in 92 percent of the cases it adjudicated. 

Additional fiscal year 1995 case processing 

statistics, including a breakdown of appeals by 

agency, are contained in the Board publication, A 

Study of Cases Decided in FY 1995.

20 
ADJUDICATION

APPELLATE JURISDICTION

PROCEDURES

Initial Appeals

Appeals to the Board must be filed in 

writing with the regional or field office having 

geographic jurisdiction within 30 days of the 

effective date of the agency action. Where the 

notice of action does not set an effective date, the 

appeal must be filed within 35 days of the date of 

the notice. 

After an appeal has been received, the 

regional or field office issues an order 

acknowledging receipt of the appeal and raising 

any questions of timeliness or jurisdiction. The 

appeal is assigned to an administrative judge for 

adjudication. The agency is required to provide 

its evidentiary file to the appellant and the 

administrative judge. The appellant and the 

agency then have the opportunity to present 

additional information for the administrative 

judge's consideration. Under certain 

circumstances, the appellant may have a right to 

a hearing on the issues of jurisdiction and 

timeliness. 

Once jurisdiction and timeliness have been 

established, the appellant has a right to a hearing 

on the merits. During preheating conferences, 

issues are defined and narrowed, stipulations to 

undisputed facts are obtained, and the possibility 

of settlement is discussed. If a hearing is held, 

each party has the opportunity to call and crossexamine witnesses, present evidence, and make 

arguments to the administrative judge. Hearings, 

which generally are open to the public, are fully 

recorded, with copies of the record available to 

the parties. Once the record is closed, an initial 

decision is issued by the administrative judge. 

When an appellant prevails in an appeal, 

interim relief is provided pending the outcome of 

any petition for review, unless the administrative 

judge determines that interim relief is not 

appropriate. If the administrative judge's 

decision requires the return of the appellant to 

the workplace, and the agency determines that 

such a return would be unduly disruptive, the 

agency must nevertheless restore the appellant to 

pay and benefits status. 

Different time limits for filing apply to 

appeals of actions allegedly based on 

whistleblowing, where the appellant has first 

filed a complaint with the Special Counsel. An 

appellant must file with the Special Counsel first 

if the complaint is based on an action that is not 

otherwise appealable to the Board and may file 

with the Board only after exhausting the 

procedures of the Office of Special Counsel. 

Appeals that reach the Board in this way are 

termed "individual right of action" or "IRA" 

appeals. 

An IRA appeal may be filed with the Board 

within 65 days after the date of a written notice 

from the Special Counsel stating that the office 

will not seek corrective action. A direct appeal 

to the Board is also authorized if 120 days have 

passed since the filing of the complaint with the 

Special Counsel, and the Special Counsel has not 

advised the appellant that the office will seek 

corrective action on his or her behalf. 

Where an appeal includes a whistleblower 

allegation and is based on an action that is 

otherwise appealable to the Board, the appellant 

may file directly with the Board or may first file 

a complaint with the Special Counsel. If the 

appellant chooses to file directly with the Board, 

the time limits for filing are the same as for all 

other direct appeals 

21
to the Board (30 or 35 days, depending on the 

kind of action). If the appellant chooses to file 

with the Special Counsel first, the time limits for 

filing with the Board are the same as for an IRA 

appeal. In either case, such an appeal is termed 

an "otherwise appealable action" or "OAA" 

appeal. 

Under the Whistleblower Protection Act, an 

appellant may also ask the Board to stay a 

personnel action allegedly based on 

whistleblowing. A stay request may be filed 

when an appellant is eligible to file a 

whistleblower appeal, and it may be filed before, 

at the same time as, or after the appeal is filed. 

Stay requests are filed in writing with the Board 

regional or field office having geographic 

jurisdiction. By law, stay requests must be 

decided within 10 days of receipt of the request. 

With respect to mixed cases, if an appellant 

has first filed a discrimination complaint with the 

agency, the appellant may file an appeal with the 

Board within 30 days after receipt of the 

agency's decision. If the agency has not resolved 

the discrimination complaint within 120 days of 

its filing, the appellant may file an appeal with 

the Board at any time after the 120-day time 

limit expires. If an appellant elects to file a 

mixed case appeal with the Board without first 

filing a discrimination complaint with the 

agency, the appeal must be filed within 30 days 

after the effective date of the agency action. 

 

Appeals involving classified national 

security information and appeals from MSPB 

employees are assigned to the Administrative 

Law Judge at headquarters for adjudication. The 

Administrative Law Judge hears these cases and 

issues an initial decision. 

22 

Petitions for Review 

 An initial decision on an appeal becomes 

the final decision of the Board unless a party 

files a petition for review with the Board within 

35 days of the date of the initial decision or the 

Board reopens the case on its own motion. The 

Board may grant a petition for review when it is 

established that the initial decision of the 

administrative judge was based on an erroneous 

interpretation of statute or regulation, or that new 

and material evidence is available that, despite 

due diligence, was not available when the record 

was closed. 

When an agency files a petition for review 

of an initial decision that provided interim relief 

to the appellant, the agency must furnish 

evidence that it has provided appropriate interim 

relief. If such evidence is not provided, the 

Board will dismiss the petition for review. 

Petitions for review are filed with the Office 

of the Clerk at Board headquarters by either 

party, or, under certain circumstances, by the 

Office of Personnel Management or the Office of 

Special Counsel as an intervenor. The Board 

also has the discretion to reopen and consider an 

initial decision on its own motion. The Board's 

decision on a petition for review constitutes the 

final administrative action. 

SIGNIFICANT ISSUES 

ADDRESSED IN APPELLATE 

CASES 

Postal Service Restructuring Cases

The U.S. Postal Service's 1992-1993 

nationwide restructuring resulted in a 

large number of appeals to the Board, 

including challenges to actions taken in the 

restructuring itself as well as attorney fee 

requests and compliance issues. The 

accompanying table displays MSPB decisions 

and related litigation during fiscal years 1993-

1995 in all cases arising from the Postal 

Service restructuring. 

POSTAL SERVICE RESTRUCTURING CASES 

DECIDED BY MSPB IN FY 1993-1995

AND RELATED LITIGATION 

FY 1993 FY 1994 FY 1995 TOTAL 

Regional\ Field Offices: 

 Initial Appeals.............................................. 172................... 228...............2,551 ...................2,951 

 Addendum Cases: 

 Attorney Fee Requests................................... 0....................... 2..................131 ......................133 

 Petitions for Enforcement .. .......................... 0....................... 7 .................110 ..................... 117 

 Board Remands.............................................. 0....................... 1......................5 ..........................6

 Total Addendum ................................................ ..................... 10..................246 ......................256 

 Total Regional\ Field 

 Offices....................................................... 172................... 238...............2,797 ...................3,207

Board Headquarters: 

 Petitions for Review - 

 Initial Appeals................................................ 3................... 166..................550 ......................719

 Petitions for Review - 

 Addendum Cases ......................................... 0....................... 0......................6 ..........................6 

 Reopenings .................................................... 0..................... 23......................1 ........................24 

 Compliance Referrals .................................... 0....................... 0......................2 ..........................2 

 Requests to Stay Board 

 Order............................................................ 0..................... 28......................0 ........................28 

 Total Board .................................................... 3................... 217..................559 ......................779 

Litigation (Federal Circuit): 

 Decisions Issued .............................................. 0....................... 5....................32 ........................37 

 Pending 9 / 30 / 95............................................. ......................... ..................204 ......................204 

24 
Having previously ruled in such lead cases 

as White v. U.S. Postal Service, 63 M.S.P.R. 299 

(1994), and Robinson v. U.S. Postal Service, 63 

M.S.P.R. 307 (1994), that demotions effected in 

the Postal Service restructuring were reductionin-force actions, the Board this year applied that 

ruling to a number of cases raising related issues. 

The Board decided numerous appeals involving 

employees who retired or requested placement in 

lower graded positions as a result of the 

uncertainties of the restructuring. It held that 

where the agency had not assigned such an 

employee to a lower graded position by the time 

he retired (see, for example, Bissett v. U.S. 

Postal Service, 66 M.S.P.R. 631 (1995)) or 

requested a different job (see, for example, 

Smitka z7. U.S. Postal Service, 66 M.S.P.R. 680 

(1995)), the employee had not been subjected to 

a RIF action. Thus, the separation or placement 

did not become appealable simply because the 

employee did not know how the restructuring 

would work out. That the agency did not know 

any more than the appellant about the future 

defeated the appellant's claim of misinformation 

and involuntariness. 

Similarly, in Jones v. U.S. Postal Service, 65 

M.S.P.R. 306 (1994), the Board held that 

employees who retired rather than face the 

possibility of being demoted during the 

restructuring were not entitled to notice of any 

right of appeal either at the time of their 

retirement or upon the issuance of the Board's 

lead 1994 decisions. Thus, their delay in filing 

with the Board until well after either event could 

not be excused by the lack of notice. 

The Board's decisions in the Postal Service 

restructuring cases were followed by a number 

of petitions for enforcement filed in the regional 

and field offices. Many of the petitions resulted 

in the issuance of recommendations by the 

administrative judges that the agency be 

found in noncompliance with the Board's orders. 

The petitions for enforcement were therefore 

referred to the Board for enforcement. 

In December 1994, the Board issued a lead 

decision in Sink v. U.S. Postal Service, 65 

M.S.P.R. 628 (1994), ordering the agency to 

restore the appellant to his former position or to 

issue him a specific notice of RIF within 120 

days of the decision. In light of the extended 

compliance period and the unusual 

circumstances, the Board appointed its General 

Counsel to serve as Special Compliance Officer 

in this case. The Special Compliance Officer 

was given full oversight responsibility, including 

the authority to require periodic progress reports, 

set deadlines, initiate conference calls, issue 

show cause orders, and take whatever other steps 

were necessary and appropriate to obtain full 

compliance with its order. In a subsequent lead 

case, Unhoch v. U.S. Postal Service, 66 M.S.P.R. 

651 (1995), the Board extended the holding of 

Sink to all compliance cases arising out of the 

agency's 1992-93 restructuring. 

Sixty-nine cases were referred to the Board 

by the regional and field offices as a result of 

recommendations finding that the Postal Service 

had not complied with the Board's final decisions 

in the restructuring cases. In August 1995, the 

Board issued a final decision in Sink v. U.S. 

Postal Service, 68 M.S.P.R. 497 (1995), finding 

that the agency had timely issued its specific 

notice of reduction in force and that, by doing so, 

it had fully complied with the Board's December 

1994 order. The Board, therefore, dismissed the 

petition for enforcement in that case. 

25 
At the end of FY 1995, there were 328 

Postal Service restructuring appeals including 

new appeals arising from the agency's 1995 

compliance RIF- and 26 addendum cases 

pending in the regional and field offices. At 

headquarters, there were 21 petitions for review, 

67 enforcement cases, and 1 reopening pending. 

Other Significant Issues Addressed

The Board addressed many other issues 

directly affecting the Federal personnel 

community. It continued to develop the law 

under 5 U.S.C. 2302(b)(8), the part of the 

Whistleblower Protection Act that protects 

employees against reprisals 'For the disclosure of 

information they reasonably believe evidences a 

violation of law, rule, or regulation, gross 

mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific 

danger to public health or safety, by extending 

its protections to: disclosures made to 

coworkers; disclosures that constitute statements 

of opinion; disclosures made in the context of 

settlement negotiations; certain disclosures that 

were also made in the exercise of an appeal, 

complaint, or grievance right under section 

2302(b)(9); disclosures that could prevent 

governmental wrongdoing even though no actual 

wrongdoing has vet occurred; and statements of 

an intent to disclose a matter about which the 

employee has a reasonable belief. 

The Board issued its first decision 

applying its new regulations that address 

what it will do in the situation where, following 

an interim relief order, only the appellant files a 

petition for review. This represents a significant 

departure from the usual case, because in this 

situation there is no agency petition subject to 

dismissal as a sanction for the agency's failure to 

submit evidence of compliance with the interim 

relief order. In this decision, the 

Board ordered the agency to submit proof of 

compliance with the interim relief order and 

retained jurisdiction over the interim relief issue 

despite its remand of the appeal to the 

administrative judge. 

The Board also clarified and modified its 

precedent relating to adverse actions. It ruled 

that an indefinite suspension, which is based on 

reasonable cause to believe the appellant guilty 

of a crime for which a sentence of imprisonment 

may be imposed, cannot be sustained, regardless 

of what the facts subsequently show, if the 

agency did not have evidence before it at the 

time it acted that met the standard. The Board 

also extended the law by allowing agencies to 

take an adverse action based on a charge of 

failure to follow proper procedures for 

requesting leave, even where that leave was 

ultimately approved. 

Based on an extensive review of the law in 

connection with an adverse action appeal, the 

Board determined that an action may be taken on 

the basis of an appellant's failure to comply with 

an ordered reassignment, later determined to be 

invalid, if the invalidity is due to the means by 

which the reassignment was effected rather than 

the reasons for it. Thus, the reversal of a 

reassignment on procedural grounds would not 

alone insulate the appellant from discipline for 

his failure to follow that order. 

The Board also issued decisions of 

significance addressing drug abuse. In these 

decisions, it determined that in accordance with 

the Americans With Disabilities Act, the 

Rehabilitation Act no longer protects as a 

"disability" the use of illegal drugs; ruled that 

reasonable suspicion drug testing may only be 

done where such suspicion exists at the time the 

test is ordered; and held that under Executive 

Order 12564, neither reversal nor mitiga26 
tion is required just because the addictive nature 

of a drug may cause a temporary relapse shortly 

after treatment begins. 

Beyond these holdings, the Board also ruled 

on several RIF-related issues that will clarify the 

requirements for such actions. These rulings will 

provide guidance in the years ahead as agencies 

downsize and face an increasing likelihood of 

the need to use the RIF procedures of 5 CFR Part 

351. In addition, the Board addressed such 

important issues as the extent to which a 

settlement that does not specify that the agency 

may not retaliate against the appellant for having 

entered into it may serve as the basis for a claim 

that the agreement was breached, and the 

authority of administrative judges to order a 

security presence at hearings to safeguard the 

parties and participants. 

See Appendix A for summaries of significant 

Board decisions on appeals issued during fiscal 

year 1995.

ORIGINAL JURISDICTION

PROCEDURES AND CASES

DECIDED

Original jurisdiction complaints are filed in 

writing with the Office of the Clerk at Board 

headquarters. Employees against whom Hatch 

Act or other Special Counsel disciplinary action 

complaints are filed have 35 days to respond and 

are entitled to a hearing. An administrative law 

judge against whom an agency proposes an 

action also has 35 days to respond and is entitled 

to a hearing. These cases, as well as Special 

Counsel corrective action complaints, are 

assigned to the Board's Administrative Law 

Judge, who issues a recommended decision to 

the Board for final action. 

Special Counsel stay requests and requests 

for regulation review are decided by the Board. 

An initial stay request may be granted by a 

single Board member, while a request for 

extension of a stay must be acted on by the full 

Board. A stay may be terminated by decision of 

the full Board following a motion by either the 

Special Counsel or the affected agency. 

Other cases included in the Board's original 

jurisdiction caseload include requests for 

attorney fees, petitions for enforcement, 

compliance referrals, court remands, and OPM 

requests for reconsideration arising out of Board 

decisions in original jurisdiction cases. With 

respect to attorney fee requests and petitions for 

enforcement related to Board decisions in 

Special Counsel and administrative law judge 

cases, an initial decision is issued by the 

Administrative Law Judge, which is then subject 

to a petition for review by the Board. 

In SES performance-based removal cases, 

the Administrative Law Judge holds an informal 

hearing, but the Board does not issue a decision. 

The record of the hearing is forwarded to the 

employing agency, OPM, and the Special 

Counsel for appropriate action. 

The number of each type of original 

jurisdiction case decided in fiscal year 1995 and 

the outcomes of those cases are set forth in the 

accompanying table. 

27 
ORIGINAL JU TIO RISDIC N CASES DECIDED

BY MSPB IN FY 1995

CASE TYPE NUMBER DISPOSITION

 DECIDED

OSC Corrective Actions.............................................................. 1............................... Dismissed - withdrawn 

OSC Disciplinary Actions -

Non-Hatch Act ............................................................................. 3............................... Remanded to ALJ - 2 

Settled - 1 

OSC Disciplinary Actions -

Hatch Act:

Federal / DC ............................................................................. 3............................... Settled - 3 

State/Local 1 ........................................................................... Settled - I 

OSC Stay Requests:

Initial Requests ............................................................................. 5............................... Granted - 5 

Requests for Extension of Stay...................................................... 16............................. Granted - 16

Petition for Enforcement................................................................ 1............................... Dismissed without prejudice 

Agency Motion for 

Termination of Stay ....................................................................... 1............................... Denied 

Agency Request for Clarification .................................................. 1............................... Jurisdiction found/ 

 compliance ordered 

Actions Against ALJs .................................................................. 7............................... Removal authorized - 1 

Dismissed - jurisdiction - I 

Dismissed - withdrawn - 3 

Settled - 2 

Request to Stay Board Order ............................... 1............................... Denied 

Requests for Regulation Review................................................. 7............................... Denied - 4 

Dismissed - jurisdiction - 3 

SES Performance-based Removals

(Hearing only - No Board decision) .............................................. 2............................... Dismissed - withdrawn - I 

Report issued - I 

TOTAL ........................................................................................ 49

See Appendix B for summaries of significant Board decisions issued in original jurisdiction cases during fiscal year 

1995.

28 
ADMINISTRATIVE LAW JUDGE

FURLOUGH CASES

Near the end of the fiscal year, twelve 

agencies filed actions with the Board asking for 

authorization to furlough their administrative law 

judges in the event of a lapse in appropriations at 

the end of fiscal year 1995. Three of these 

agencies also asked for authorization to furlough 

their administrative law judges in the event they 

received significantly lower appropriations for 

fiscal year 1996 than their 1995 amounts, as 

expected. 

Unlike other Federal employees, 

administrative law judges are entitled under 5 

U.S.C. §7521 to a hearing and decision by the 

Board before their agencies may subject them to 

certain personnel actions, including a furlough of 

30 days or less. The Board must authorize a 

proposed action under section 7521, upon a 

showing of good cause, before an agency can 

effect it. 

At the end of the fiscal year, these cases 

were pending. The cases based on an anticipated 

end of the fiscal year lapse in appropriations 

were subsequently dismissed as moot in October, 

following the signing of the first continuing 

resolution for FY 1996. The three cases based 

on expected reductions in appropriations, as well 

as new actions filed by agencies in anticipation 

of a lapse in appropriations as continuing 

resolutions expired, were referred to the Board's 

Administrative Law Judge for adjudication. 

IMPROVEMENTS IN THE

ADJUDICATORY PROCESS

Regional and Field Offices 

The dramatic increase in the number of 

cases decided in the regional and field offices in 

fiscal year 1995-27 percent more than in the 

previous fiscal year occurred as regional staffing 

declined by 8 percent. The overall increase in 

productivity was achieved largely through the 

efforts of the administrative judges-who 

handled an average 158 cases each, compared to 

124 in FY 1994-and support staff, together with 

such process improvements as consolidating 

hearing travel. In light of the continual pressure 

from Congress, and the efforts of the President, 

to reduce the size of the Federal Government and 

its workforce, there appears no reason to expect 

anything but a continued elevated caseload as 

agencies work to reduce their employment levels 

and accommodate shrinking budgets. 

In August 1995, the Board realigned the 

geographical jurisdictions of its regional and 

field offices to match caseload more closely with 

the staffing of each office. In addition, two 

administrative judge positions were reallocated 

among the offices. The Board continued to fill 

vacancies in administrative judge positions from 

within, with several headquarters attorneys 

moving to administrative judge positions in the 

regional and field offices and some judges 

moving from one regional or field office to 

another. 

During the fiscal year, the regional and field 

offices continued their experimentation with the 

use of settlement judges. Some offices 

designated one administrative judge to serve 

full-time as settlement judge. Other offices 

employed variations on the concept, such as 

having the regional director serve as settlement 

judge or setting up an informal system in which 

administrative judges assign cases among 

themselves for settlement. 

Reports from the regional and field offices 

indicate that the settlement judge concept has 

resulted, in some regions, in an increase in 

settlements. Use of a settlement judge has the 

advantage of ensuring the separation of 

settlement negotiations from the adjudication 

process. With a single settlement judge, other 

judges in the office are freed from settlement 

negotiations, and their production of adjudicated 

cases can increase. In some instances, however, 

this approach can lead to burnout of the settle-
ment judge, especially when more complex cases 

are targeted for settlement. The Board will 

continue to monitor results in this area in order 

to determine whether the continued use of 

settlement judges produces the desired cost 

savings and increases in production. 

The Board also completed its first pilot 

video tele-hearing early in the fiscal year. Using 

video teleconferencing technology, the Board 

electronically brought together an administrative 

judge in Atlanta, Georgia, with the parties, 

attorneys, and witnesses at Ft. Bragg, North 

Carolina. In addition to producing a mutually 

satisfactory outcome for the parties, the video 

tele-hearing resulted in savings of both time and 

money. 

Headquarters 

The 10 percent increase in decisions on 

petitions for review and other appellate 

jurisdiction cases was achieved despite a 12 

percent reduction (4 of 34 attorneys) in the legal 

staff of the Office of Appeals Counsel, the 

headquarters office that processes almost all such 

cases. Clearly, the Board has put into practice 

the theory that Government agencies must 

deliver more service despite fewer resources. 

During fiscal year 1995, the Board saw the 

benefits of its earlier streamlining and 

empowerment efforts in two significant ways. 

First, by empowering headquarters attorneys to 

submit certain proposed decisions to the Board 

without further review by supervisors, and in 

turn, allowing supervisors to send an expanded 

range of cases to the Board without further 

review by additional levels of supervisory 

attorneys, cases were forwarded to the Board 

more quickly and efficiently. The rate at which 

cases were returned for revision did not increase 

as a result of this 

change. Second, this process of empowerment 

provided attorneys and supervisors additional 

time to concentrate on more significant cases. 

Both the Board and its customers were better 

served. 

The Board also saw benefits from having 

established both a settlement team and a policy 

team in the Office of Appeals Counsel. 

Specifically, the office was better able to 

centralize its efforts in deciding issues remaining 

from the Postal Service's 1992-1993 

restructuring. Moreover, it was able to address 

several cases of a policy nature that required 

extensive research and drafting efforts through a 

more collaborative process, than can normally be 

used in the adjudication of petitions for review. 

This led to the issuance of cases setting 

important precedent to guide future actions of 

administrative judges and the Board itself. 

The Board continued its vigorous settlement 

program at the petition-for-review level. The 

rate of success during the last quarter of the 

fiscal year hovered around 17 percent of the 

cases where settlement was attempted. While 

interest in alternative dispute resolution 

procedures continued among Federal agencies 

generally, reduced budgets, downsizing, and 

restructuring may have impeded settlement 

efforts in that reinstatement and reassignment 

may have become less feasible than in the past. 

Nonetheless, the settlement program continues to 

further the interests of both alternative dispute 

resolution and customer service. Appellants, in 

particular, regularly express their appreciation 

for a sympathetic ear and a detailed explanation 

of the legal reasons for the outcome of their 

appeals. Thus, even though settlement efforts do 

not culminate in an agreement in many instances, 

the parties are at least more satisfied with the 

adjudicatory process as a result of those efforts. 

30 
LITIGATION 

The Board defends its final decisions involving 

issues of jurisdiction and procedure before the U.S. 

Court of Appeals for the Federal Circuit, its primary 

reviewing court. The number of cases the Board 

defends in the Federal Circuit expanded dramatically 

during fiscal year 1995, primarily because of appeals 

involving jurisdictional and timeliness issues filed by 

U.S. Postal Service employees following the Postal 

Service restructuring. Forty-three percent of the 

cases litigated by the Board in fiscal year 1995 were 

Postal Service restructuring cases. The total number 

of cases litigated by the Board was 337, compared to 

200 in fiscal year 1994. This represents a 69 percent 

increase over the number of cases the Board litigated 

in the previous fiscal year. During the same period, 

there was a 25 percent reduction (3 of 12 attorneys) 

in the legal staff in the Office of the General Counsel. 

The Board also defends appeals of decisions in 

cases brought by the Special Counsel and decided by 

the Board under its original jurisdiction authority. 

All of these cases are appealed to the Federal Circuit 

except Hatch Act cases involving employees of state 

and local governments, which are heard by Federal 

district courts. Original jurisdiction cases typically 

involve complex issues such as the extent of the 

Special Counsel's jurisdiction and novel issues 

involving prohibited personnel practices and Hatch 

Act violations. 

The Board also litigates appeals of decisions in 

which the Director of OPM petitions for review in the 

Federal Circuit because he has determined, in his 

discretion, that the Board's determination is erroneous 

and will have a substantial impact on a civil service 

law, rule, regulation, or policy directive. Other 

litigation 

includes subpoena enforcement cases and 

discrimination cases filed in the various Federal 

district courts where the Board is named as a 

defendant. 

In fiscal year 1995, the Federal Circuit decided 

King v. Nazelrod, 43 F.3d 663 (Fed. Cir. 1994), 

affirming the Board's decision holding that when an 

agency disciplines an employee based on a charge of 

criminal misconduct, the agency must prove by 

preponderant evidence all the elements of the 

criminal charge. The Board found, and the court 

agreed, that the agency had not proved its charge of 

theft because the agency did not show that the 

employee acted with the intent to permanently 

deprive the owner of the money she was charged with 

stealing. 

The Federal Circuit issued two decisions 

clarifying the Board's jurisdiction over appeals 

brought by excepted service employees. In Forest v. 

Merit Systems Protection Board, 47 F.3d 409 (Fed. 

Cir. 1995), the court held that an excepted service 

employee's service under a temporary appointment 

could not be considered in determining whether the 

employee met the jurisdictional prerequisite of two 

years of current, continuous service. In Todd v. Merit 

Systems Protection Board, 55 F.3d 1574 (Fed. Cir. 

1995), the court concluded that the Civil Service Due 

Process Amendments did not extend appeal rights to 

an employee who was appointed under a statute 

permitting the Department of Defense to hire 

employees for its dependents schools without regard 

to the civil service laws. 

The Federal Circuit also published two opinions 

limiting the Board's authority to hear an employee's 

claims of agency abuse in the adjudicative process. 

In King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994), 

the court held that in determining whether an agency 

has complied with an order granting a prevailing 

appellant interim relief, the 

31 
Board cannot review whether the agency acted 

in bad faith in determining that returning the 

employee to duty would unduly disrupt operations, 

but may only consider whether the agency made such 

a determination and, if so, whether the agency has 

provided the employee with appropriate pay and 

benefits. Similarly, in King v. Reid, 59 F.3d 1215 

(Fed. Cir. 1995), the court determined that when the 

Board adjudicates an employee's claim that an agency 

has not complied with a Board decision granting the 

employee relief, the Board has no authority to hear a 

claim that discrimination was a basis for the agency's 

failure to comply. 

The U.S. Court of Appeals for the Fourth Circuit 

issued a decision in Williams v. Merit Systems 

Protection Board, 55 F.3d 917 (4th Cir. 1995), 

upholding a Board decision finding that a state 

employee violated the Hatch Act by running for 

partisan political office and that this violation 

warranted removal from state employment. The 

court agreed with the Board that the employee was 

covered by the 

Hatch Act because she was principally 

employed in connection with a federally funded 

activity, notwithstanding that she had no supervisory 

or discretionary authority over the administration of 

Federal funds. 

During fiscal year 1995, the Board monitored 

more than 900 cases in the Federal Circuit involving 

appeals of decisions issued by the Board under its 

appellate jurisdiction. Although the Department of 

Justice defends the employing agency against whom 

the appeal is filed, the Board monitors this litigation 

closely. Board activities in connection with 

monitored litigation include evaluating the case to 

determine if Board intervention is appropriate, 

responding to inquiries, assisting in drafting briefs, 

and analyzing the court's decision in these cases to 

determine its applicability and impact. 

See Appendix C for summaries of significant court 

decisions issued during fiscal year 1995.

32 
STUDIES 

THE STATUTORY STUDIES 

FUNCTION 

The CSRA assigned the Board, in addition to its 

adjudicatory functions, responsibility for reviewing 

the significant actions of OPM and conducting 

studies of the civil service and other merit systems in 

the Executive Branch. These studies and oversight 

reviews complement the Board's adjudicatory 

activities by reviewing Federal human resources 

management policies and practices on a systemic 

basis. In this regard, the Board is uniquely situated to 

provide neutral, independent reviews and assessments 

as part of the ongoing effort to develop and maintain 

an effective and efficient civil service. 

As confirmed by an extensive customer survey, 

the Board's studies and oversight reviews provide 

relevant and useful data, analyses, and 

recommendations to Federal policy officials and 

others. From the Board's first published report in 19 

81 to the present, there have been numerous policy 

changes and other actions taken at various levels 

within Government that apply the Board's 

recommendations. As an example, the Office of 

Personnel Management recently issued regulations on 

temporary hiring policy that adopted changes 

recommended in an earlier Board study of temporary 

employment. Subsequently, recommendations of the 

temporary employment study were incorporated in 

the Administration's proposed civil service reform 

legislation. 

In another recent example of the impact of 

Board studies, several Cabinet departments have 

requested that Board staff act as consultants to them 

on effective methods for preventing sexual harassment in their workplaces and for reducing the 

human and financial costs associated with this 

prohibited personnel practice. These requests 

recognize the expertise of the studies staff, gathered 

through three internationally recognized studies of 

sexual harassment in the Federal Government. The 

Department of justice sought the staff's services to 

conduct an in-depth, departmentwide study on sexual 

harassment that will also solicit employee views on 

the utility (or lack thereof) of any sexual harassment 

training received. 

With an overall focus on compliance with the 

merit system principles and freedom from prohibited 

personnel practices, the Board typically solicits 

specific potential study topics from a wide variety of 

sources in developing its studies and OPM oversight 

agenda. The Board's studies, usually 

Governmentwide in scope, are conducted through a 

variety of research methods, including mail and 

telephone surveys, on-site systems reviews, written 

interrogatories, formal discussions with subjectmatter experts, computer-based data analysis, and 

reviews of secondary source materials. 

The Board's reports on the results of its studies 

are addressed to the President and the Congress, as 

required by law, and also are made available to a 

large secondary audience of Federal agency officials, 

employee and public interest groups, labor unions, 

academicians, and other individuals and 

organizations with an interest in public personnel 

administration. The impact of these studies is 

augmented through an active outreach program 

consisting of public presentations, on-site and 

telephone consultations in response to requests by 

Federal agency officials, and papers and articles 

published in the professional literature. 

33
HIGHLIGHTS OF 1995 REPORTS

AND OTHER ACTIVITIES

Leadership for Change: Human Resource 

Development in the Federal Government. This study 

determined that the resources being devoted to 

human resource development activities by Federal 

agencies were often inadequate and that the uses for 

these resources were not prioritized. The Board 

found that in a time of unprecedented change, when 

programs and priorities of the Federal Government 

require focused use of developmental activities, 

human resource development should be made part of 

the strategic planning process. Further, 

developmental activities undertaken by Federal 

agencies should be assessed to ensure their 

effectiveness in meeting agency needs. 

Sexual Harassment in the Federal Workplace: 

Trends, Progress, Continuing Challenges. This 

study updated the Board's 1980 and 1987 studies of 

sexual harassment and was based on a 

Governmentwide survey of Federal workers. The 

Board found that while the Federal workforce is more 

sensitive to the problem of sexual harassment, the 

problem has by no means disappeared. Nevertheless, 

the Government has made progress in building a 

greater understanding of the relevant underlying 

issues and sensitivity to how people are treated in the 

workplace. 

The Rule of Three in Federal Hiring: Boon or 

Bane? This study analyzed the effect of the 

requirement of law that managers hire from among 

the top three candidates referred for a position. The 

Board found this legal requirement is not advancing 

the principle of merit that it was intended to protect. 

Too often, the procedures for meeting the rule of 

three have created lottery situations with equally 

qualified candidates randomly referred for selection. 

The study also analyzed the interaction 

between the rule of three and the veterans 

preference provisions established by law. Here, the 

Board found the conventional wisdom that the 

interaction of these two laws has worked to 

significantly reduce managers' choices is overstated. 

A report, Fair and Equitable Treatment: A 

Progress Report on Minority Employment in the 

Federal Government, is anticipated for release in 

1996. The report is based on a study of the treatment 

of minorities in the Federal Government. It analyzes 

differences in the treatment of minorities and 

nonminorities and recommends ways in which these 

differences might be addressed. 

The Board has continued to seek ways to 

improve the efficiency with which it gathers data for 

its studies, including direct access to and use of the 

Central Personnel Data File (CPDF) maintained by 

the Office of Personnel Management. The Board has 

made increasing use of this tool in conducting its 

research. 

In fiscal year 1995, the Board also initiated use 

of an issue paper format to supplement its in-depth 

reports. The first was an issue paper, Removing Poor 

Performers in the Federal Service, that served as the 

basis for testimony presented by the Board to the 

Civil Service Subcommittee of the House 

Government Reform and Oversight Committee in 

October 1995. Data from the issue paper was 

constructively used by subcommittee staff and by 

other witnesses before the subcommittee. Several 

other issue papers were in the planning stages at the 

end of the fiscal year. These short (1015 page) 

papers will allow for even more timely input on 

rapidly developing issues. 

See Appendix D for summaries of reports completed 

during fiscal year 1995.

34 
INFORMATION SERVICES

ON-LINE INFORMATION AND

PUBLICATIONS

During fiscal year 1995, the Board increased the 

amount of information available to the public on-line 

through the MSPB Library on the Government 

Printing Office's Federal Bulletin Board. First 

implemented in July 1994, the bulletin board now 

contains more than 1,000 files, including final Board 

decisions, weekly summaries of significant Board 

decisions, reports of Board studies, information 

publications (An Introduction to the MSPB, 

Questions & Answers About Appeals, and Questions 

& Answers About Whistleblower Appeals), 

biographies of the Board members and senior staff, 

press releases, and Federal Register notices. Users of 

the bulletin board logged more than 1,000 downloads 

of MSPB files during the fiscal year. As of 

December 1, 1995, all files on the Federal Bulletin 

Board are available for FREE downloading. At the 

end of the fiscal year, the Board was making plans to 

further expand on-line access to its information 

through the establishment of a World Wide Web site. 

The site was subsequently launched in March 1996. 

The Board also has its own section in the 

Employee and Labor Relations Forum of the OPM 

Mainstreet electronic bulletin board, which can be 

accessed by computer modem at 202-606-4800. Files 

placed in this section by OPM include the weekly 

summaries of Board decisions, certain especially 

significant decisions, and the MSPB information 

publications. 

The publications made available on-line are 

available in printed form as well, as are the Board's 

Annual Report to the President and the Congress for 

Fiscal Year 1994 and the Study of Cases Decided in 

Fiscal Year 1994. Requests for copies of Board 

decisions should be directed to the MSPB Library at 

202-653-7183 (or FAX 202-653-7130). Copies of 

reports of merit systems studies and reviews of OPM 

actions may be obtained from the Office of Policy 

and Evaluation at 202-653-8900. Copies of all other 

publications may be ordered from the Office of the 

General Counsel's Congressional and Public Affairs 

line, 202-653-6772, extension 1277. 

The MSPB Library on the Federal Bulletin Board can be accessed by computer modem at 202-512-1387 seven 

days a week. The Federal Bulletin Board can also be accessed via the Internet--telnet to fedbbs.access.gpo.gov or 

go via the Fedworld site on the World Wide Web, http://www.fedworld.gov. User assistance is available from GPO 

from 8 AM to 4 PM Eastern time, Monday through Friday, by calling 202-512-1530.

MSPB's World Wide Web site provides general information about the Board, brief biographies of the Board 

members, a list of regional and field offices with addresses and telephone numbers, a list of reports of merit systems 

studies, and directions for obtaining additional information. The address of the site is 

http://www.access.gpo.gov/mspb.

Comments or questions regarding MSPB, the bulletin board, or the Web site may be sent to the Board's e-mall 

address, mspb@mspb.gov.

35 
OUTREACH

In spite of budget-driven reductions in travel, the 

Board members, headquarters staff, and regional/field 

office staff still were able to participate in almost 140 

outreach activities to major constituencies during 

fiscal year 1995-down from about 200 annually in 

previous years. These activities included addressing 

groups, participating in seminars and conferences, 

and conducting training programs designed to further 

an understanding of the Board's policies and 

procedures, developments in Board case law, and 

important issues in Federal personnel law, public 

administration, and human resources management. 

Almost half of the outreach appearances during 

the fiscal year were made by the regional directors 

and administrative judges. Audiences for these 

appearances numbered from 10 to 200, with a 

combined total audience of several thousand. Many 

of the presentations concentrated on the "how to" of 

presenting a case before the Board, and some 

included mock hearings designed to familiarize 

participants with Board practices and procedures. In 

addition, regional and field office personnel 

addressed such topics as significant Board and 

Federal Circuit decisions, the Whistleblower 

Protection Act, reductions in force, interim relief for 

prevailing appellants, and attorney fees. 

The Board members and headquarters attorneys 

participated in outreach activities to inform agencies, 

employee unions, private practitioners, and other 

interested parties about the Board, its authorities, 

jurisdiction, practices, and procedures. Topics 

addressed included recent developments in Board and 

Federal Circuit case law, the appeals process, 

alternative dispute resolution, and ethics. In addition, 

a number of the presentations focused on reinventing 

Government initiatives at the Board. 

The Board participated in the annual Federal 

Circuit Judicial Conference in June 1995 and 

sponsored a breakout session on potential legislative 

changes that would affect the Federal personnel 

system and employee appeals process. In August 

1995, the Board again participated in the Federal 

Dispute Resolution Conference with EEOC, OPM, 

the Federal Labor Relations Authority (FLRA), the 

Federal Mediation and Conciliation Service (FMCS), 

and the Office of Special Counsel. 

The studies staff participated in conferences, 

seminars, and symposia to discuss human resources 

management issues and to report on the results and 

implications of the Board's studies and reviews of 

OPM significant actions. In addition to addressing 

the findings and recommendations of recently issued 

reports, the studies staff discussed studies in progress 

and potential changes in the Federal personnel system 

as a result of reinventing Government initiatives and 

the downsizing of the Federal workforce. 

36 
INTERNATIONAL VISITORS 

PROGRAM 

The Board's international visitors 

program is conducted at Board headquarters by 

the Board members and staff of the Human 

Resources Management Division. The program is 

responsive to requests from foreign visitors who wish 

to learn about merit system principles and the Board's 

practices and procedures. During fiscal year 1995, 

the Board hosted 13 visits involving approximately 

40 delegates from a number of countries, including 

Bangladesh, China, Hungary, Korea, Lebanon, 

Taiwan, and Ukraine. The international visitors 

included ministers, chairmen, directors-general, 

inspector generals, judges, and specialists, many of 

whom expressed particular interest in civil service 

reform to include restructuring and streamlining 

initiatives. 

37 
ADMINISTRATION 

STREAMLINING

The Board's Annual Report to the President and 

the Congress for Fiscal Year 1994 summarized the 

reorganization and streamlining initiatives 

undertaken during that year in response to the 

Administration's National Performance Review 

(NPR) and the Federal Workforce Restructuring Act 

of 1994. In fiscal year 1995, the Board's focus 

shifted to the new goals established under the second 

phase of the Administration's reinventing 

Government initiative (REGO II) and the deficit 

reduction targets of the new Congress. 

Early in calendar year 1995, as part of the 

Administration's deficit reduction plan, agencies were 

given new target budget levels through the year 2000. 

Because the Board's budget allocations for each year 

were reduced from previous levels, and because 

about 80 percent of its budget is consumed by staff 

salaries and benefits, the Board determined that the 

budget it could expect in 2000 would support only 

about 210 employees. 

Under NPR and the Federal Workforce 

Restructuring Act , MSPB would have been required 

to reduce its staffing from about 320 in 1993 to 275 

by 1999. Attrition, assisted by judicious use of earlyout authority and buyouts, had already reduced the 

staffing level to about 270 by early 1995-a 16 percent 

reduction from 1993. During this same period, 

caseload increased by 40 percent. To meet the new 

target staffing level, the Board must find ways to 

achieve a further reduction of just over 20 percent of 

its 1995 staffing level while still handling a caseload 

estimated to continue at the 1995 level. 

In order to plan for this further reduction in 

staff-and to conduct the thorough review of agency 

functions called for under REGO II-the Chairman, 

following discussions with employees and pursuant 

to a recommendation by the MSPB Labor 

Management Partnership Council, appointed a REGO 

II Task Force to recommend actions, including 

changes in the structure of MSPB, that would enable 

the agency to continue performing its functions 

effectively at the reduced budget and staffing levels 

expected through the year 2000. The task force took 

a functional approach to its review of the agency's 

operations, rather than the office-by-office approach 

used in the first reengineering effort. In its final 

report to the Chairman, the task force made a number 

of recommendations. The recommendations, 

although under consideration, had not been 

implemented by the end of the fiscal year. 

TECHNOLOGY AND 

PROCEDURAL IMPROVEMENTS

As a first step toward implementation of a 

Board-wide local area network (LAN), the 

Information Resources Management Division 

installed a network in the Office of the General 

Counsel during fiscal year 1995. A previouslyinstalled LAN in the Office of Appeals Counsel was 

scheduled to be joined with the new Board-wide 

LAN in fiscal year 1996, with installation in the 

remaining headquarters offices to follow shortly 

thereafter. The next phase will be implementation of 

LANs in the regional and field offices, which will 

then be connected to each office and to Board 

headquarters through a Wide Area Network. This 

network will enable all MSPB staff to easily share 

documents, software, and peripherals and will permit 

future improvements in office automation and case 

38 
tracking. During fiscal year 1995, the Board began 

upgrading personal computers in all MSPB offices in 

preparation for the installation of additional 

Windows-based software. 

Over 100 reports generated by the automated 

Case Management System (CMS) were modified to 

reflect changes in Board processes and to improve 

their usefulness. These modifications permitted the 

publication in the Study of Cases Decided iii Fiscal 

Year 1994 of CMS reports as they are generated by 

the system, eliminating the time-consuming task of 

rekeying statistical tables into a word processing 

program prior to publication. In addition, an 

extensive review of data elements included in CMS 

was conducted during the fiscal year. As a result of 

this review, many data codes were combined or 

eliminated, thus reducing considerably the amount of 

information that must be entered by case trackers for 

each case processed. 

In the Office of the Clerk, a number of steps 

were taken to increase the efficiency of case 

processing and to reduce costs. After consultation 

with OPM, the office was able to save hundreds of 

dollars by discontinuing the mailing to OPM of 

copies of all processing letters associated with a case 

other than the final order of the Board. The office 

also realized savings of several thousand dollars in 

copying and mailing costs by negotiating an informal 

agreement with the EEOC whereby EEOC attorneys 

come to MSPB to review particularly large records in 

mixed cases that have been appealed to EEOC. 

Additional savings were achieved through 

instructions to the MSPB regional and field offices to 

provide notice to parties filing petitions for review 

that documents already included in the record below 

should not be filed with a PFR. This 

change resulted in smaller case records, which 

reduced costs for mailing and copying files, as well 

as the cost of storage space. It also reduces the 

amount of expenditures by the parties. 

ADMINISTRATIVE ACTIVITIES

Having assumed responsibility for reviews of 

internal management controls in the 1994 

reorganization, the Financial and Administrative 

Management Division completed eight management 

control reviews during fiscal year 1995. The reviews 

covered time and attendance records, warehouse 

operations, verification of payroll data, payroll 

deductions and withholding, the travel charge card 

program, property management, supply operations, 

and procurement. In addition, an independent CPA 

firm conducted reviews of the general ledger and the 

adequacy of the Board's management control 

program. As part of its oversight responsibilities, the 

Office of the General Counsel contracted with a CPA 

firm to develop methodology and a five-year plan to 

review the Board's operations. The office is also 

responsible for processing complaints of waste, fraud, 

and abuse, including those referred from the Hotline. 

In support of National Performance Review 

recommendations and the President's Executive 

Order on Labor Management Relations, the Board 

established an Agency-Wide Partnership Council that 

includes bargaining unit, non-bargaining unit, senior 

executive, and middle management representation. 

This council and the Labor-Management Partnership 

Council have obviated traditional bargaining on 

matters as significant as the Board's flexiplace and 

alternative work schedule pilot programs. 

39 
Near the end of the fiscal year, the Board 

established a Career Transition Center (CTC) as one 

means of assisting employees who will be affected by 

the Board's restructuring and downsizing. In its 

initial phase, the CTC consists of personal resume 

and SF-171 software and on-line electronic job 

vacancy and job search programs. The Board expects 

that, as the 

need arises, the CTC will be expanded to include 

videos, books, and workshops for preparing resumes, 

cover letters, and applications, as well as skills and 

interests assessments. The CTC is operated under the 

supervision of the Director of Equal Employment 

Opportunity and was implemented through the 

volunteer efforts of many Board employees. 

FINANCIAL STATEMENT 

The income and expenses for the Merit Systems Protection Board for fiscal year 1995 (October 1, 1994, through 

September 30, 1995) are shown below. All figures in thousands of dollars.

 INCOME

 Appropriations .............................................................................................. 24,549 

 (Less rescission)................................................................................................ (42) 

 Civil Service Retirement & Disability Trust Fund ......................................... 2,250 

 Other reimbursements.......................................................................................... 78

 Total income ................................................................................................. 26,835 

 EXPENSES

 Direct obligations: 

 Personnel compensation 

 Full-time permanent ................................................................................... 15,043 

 Other than full-time permanent ....................................................................... 803 

 Other personnel compensation ........................................................................ 239

 Subtotal, personnel compensation ................................................................ 16,085 

 Personnel benefits........................................................................................... 2,740 

 Benefits - former employees.............................................................................. 155 

 Travel of persons ............................................................................................... 462 

 Transportation of things....................................................................................... 67 

 Rental payment to GSA .................................................................................. 2,119 

 Communications, utilities, and miscellaneous charges...................................... 578 

 Printing and reproduction .................................................................................. 100 

 Other services ................................................................................................. 1,299 

 Supplies and materials ....................................................................................... 218 

 Equipment.......................................................................................................... 629

 Subtotal, direct obligations ........................................................................... 24,452 

 Reimbursable obligations................................................................................ 2,328 

 Total obligations ........................................................................................... 26,780 

 BALANCE.......................................................................................................... 55 

 40 
APPENDIX A -SIGNIFICANT

BOARD DECISIONS

APPELLATE JURISDICTION

CASES

This appendix contains summaries of significant 

appellate jurisdiction cases decided by the Board 

during fiscal year 1995. 

Board decisions are published in West 

Publishing Company's United States Merit Systems 

Protection Board Reporter. The M.S.P.R. citations 

below are to that publication. 

Board decisions and weekly summaries of 

significant decisions are available on the Government 

Printing Office's Federal Bulletin Board. Dial 202-

512-1387 via computer modem, and go to the MSPB 

LIBRARY. Assistance is available from GPO by 

calling 202-512-1530. Certain significant Board 

decisions are also available on the OPM Mainstreet 

BBS, 202-6064800. 

POSTAL SERVICE

RESTRUCTURING

Bissett z,. U. S. Postal Service, 66 M.S.P.R. 631 

(1995)

The Board held that where an appellant had 

access to as much information as the agency 

concerning its restructuring, a claim that his 

retirement is involuntary because the agency did not 

provide sufficient information Jails. Where no action 

to affect the appellant's grade, pay, or tenure was 

taken before his retirement, despite the abolishment 

of his position, he was not released from his 

competitive 

level or affected by a RIF; thus, the agency's failure 

to provide RIF appeal rights does not cause his 

retirement to be involuntary. 

Jones v. U.S. Postal Service, 65 M.S.P.R. 306 

(1994)

Employees who retired during the restructuring 

without having been demoted were not entitled to 

notice of an appeal right from that action unless they 

put the agency on notice at that time or later that they 

considered their retirement involuntary. At the time 

of the restructuring, there was no law establishing 

that the restructuring was actually a RIF situation. 

Where the agency is not required to give notice of 

appeal rights, the appellant must exercise diligence in 

discovering and pursuing any right of appeal he may 

have. 

Sink v. U.S. Postal Service, 65 M.S.P.R. 628 

(1994)

Unless it has compelling reasons, an agency 

must restore an employee who has suffered an 

unjustified personnel action to the status quo ante. 

The abolishment of the appellant's former job is a 

compelling reason for not returning him to that 

position. With respect to the Postal Service 

restructuring, the Board held that the decision to run 

a RIF rather than return the appellant as nearly as 

possible to the status quo ante is not compliance with 

its order. It ruled that, to be in compliance, the 

agency must either return the appellant to his former 

position or issue him a specific notice of RIF. 

Kelly v. U.S. Postal Service, 68 M.S.P.R. 565 

(1995)

In petitions for review following reversals on the 

merits of demotions effected during the restructuring, 

as in petitions for enforcement, it is proper to treat an 

allegation on the merits of the agency's compli41
ance RIF as a new RIF appeal and not as a 

compliance action. The Board extended a 30-day 

period to the appellant in which he may file such an 

appeal. 

WHISTLEBLOWER PROTECTION 

ACT 

Van Ee v. Environmental Protection Agency, 64 

M.S.P.R. 693 (1994)

That the appellant's statements constituted 

expressions of his opinion did not remove them from 

the status of protected disclosures if he reasonably 

believed them, since the element of opinion is always 

present in such a disclosure. That they were made in 

the context of a settlement discussion also did not 

remove them from the protection of 5 USC 

§2302(b)(8). First Amendment arguments and 

prohibited personnel practice claims not based on 

(b)(8) cannot be considered in the context of an IRA 

appeal. 

Sirgo v. Department of Justice, 66 M.S.P.R. 261 

(1994)

Disclosures to co-workers and an intent to 

disclose to agency officials are both protected by 5 

USC §2302(b)(8) as long as they meet the reasonable 

belief test. Where an appellant who resigned in the 

face of a threat to terminate his employment during 

his probationary period requests not just abatement of 

the threat (i.e., cancellation of the proposed 

termination), but reinstatement and back pay, he must 

show that a reasonable person in his position would 

have resigned under those circumstances. 

Ward v. Department of the Army, 67 M.S.P.R. 482 

(1995)

The disclosure of matters that are only potential 

violations may be protected where they evidence a 

reasonable belief of wrongdoing as set forth in 5 USC 

§ 

2302(b)(8). Here, because the potential wrongdoing 

disclosed under such circumstances was "real and 

immediate," the Board found that the appellant had 

the requisite reasonable belief. 

Mitchell v. Department of the Treasury, 68 M.S.P.R. 

504 (1995)

That the appellant may have raised her claims in 

an unfair labor practice (ULP) charge did not in and 

of itself render them unprotected by 5 USC 

§2302(b)(8). Rather, if the alleged facts underlying 

the ULP charge also would constitute independent 

violations of (b)(8), the employee discloses the facts 

through additional channels in such a way as to 

advance her whistleblowing claim, and she suffers 

personnel actions she alleges constitute 

whistleblower retaliation, she may avail herself of the 

IRA procedure. If the facts disclosed evidence only a 

ULP, however, and not another violation of law, rule, 

or regulation, or other basis under (b)(8), it is not the 

type of disclosure intended to be protected by that 

section. 

Paul v. Department of Agriculture, 66 M.S.P.R. 643 

(1995)

Reassignment and nonselections for vacancies 

are personnel actions. The denial of certification as a 

mineral examiner is not a personnel action; nor are 

the tortious acts of defamation, interference in the 

appellant's employment relations, placement of the 

appellant in a false light, or intentional infliction of 

mental distress. 

ADVERSE ACTIONS 

Barresi, et al., v. U.S. Postal Service, 65 M.S.P.R. 

656 (1994)

In order to indefinitely suspend an employee 

under the crime provision of 5 U.S.C. 7513, an 

agency must have rea42 
sonable cause to believe the employee has committed 

a crime for which a sentence of imprisonment may be 

imposed. Evidence of an employee's arrest, or 

evidence of an employee's arrest and conviction, are 

insufficient to meet this standard. The same is true 

for media reports, without some form of independent 

verification, and to the extent that Martin v. Treasury,

12 M.S.P.R. 12 (1982), suggests to the contrary, it is 

modified. Because of the unique nature of the crime 

provision on which indefinite suspensions are based, 

the critical factor in the reasonable cause 

determination is the evidence the proposing and 

deciding officials have before them at the time they 

act. It would deny due process to sustain an 

indefinite suspension based on evidence the agency 

did not have before it when it made its reasonable 

cause determination. 

Cooke v. U.S. Postal Service, 67 M.S.P.R. 401 (1995)

Where an AWOL charge is based on the failure 

to report for a directed reassignment, the agency must 

prove that its reassignment decision was bona fide 

and based on legitimate management reasons. Here, 

that rule was applied in the context of the agency's 

order that the appellant report to a lower grade job as 

part of its nationwide restructuring. As was true of 

all such similar cases, the placement action was later 

reversed because the agency failed to follow 

reduction-in-force procedures in making it. Not 

having reported for duty, the appellant was removed 

for AWOL prior to that adjudication. In the context 

of this adverse action appeal of the removal, the 

Board examined its relevant case law and found that 

its review of directed reassignments is intended to 

assure that they are not used for illegitimate reasons, 

and is directed to the reasons for the action, not the 

means by which it was effected. Thus, a demotion like this one is legitimate under this test ' and 

where the appellant does not obey the order to report, 

he is properly subject to removal for AWOL. The 

Board also clarified its law and held that an employee 

is privileged to disobey an order only where 

compliance would cause him irreparable harm. 

Wilkinson v. Department of the Air Force, 68 

M.S.P.R. 4 (1995)

This decision extended the rule of Fleming v. 

USPS to agencies other than the Postal Service, 

allowing employees to be removed for failure to 

follow leave-requesting procedures despite the 

approval of their leave. 

DRUG-RELATED ISSUES 

Lazenby v. Department of the Air Force, 66 M.S.P.R. 

514 (1995)

Under Executive Order 12564, agencies "shall 

initiate action to discipline" an illegal drug user 

except for one who voluntarily identifies himself and 

agrees to testing, obtains treatment, and thereafter 

abstains from using illegal drugs. Further, the agency 

must initiate a removal action where the employee 

refuses to obtain treatment or "thereafter" uses such 

drugs. In this context, the Board found that the word 

"thereafter" means the period beginning immediately 

after a finding of drug use, so that the fact that the 

appellant's relapse, which led to the removal, 

occurred in the early stage of her treatment, even for 

a drug as addictive as cocaine, does not lessen the 

seriousness of the offense. 

43 
Garrison v. Department of Justice, 67 M.S.P.R. 154 

(1995)

In deciding whether an agency's reasonable 

suspicion determination under its drug testing 

program was proper, the relevant inquiry is whether it 

was sufficient at the time it was made. It should not 

be evaluated on facts that did not come to light until 

after that time. 

Little v. U.S. Postal Service, 66 M.S.P.R. 574 (1995)

Section 512 of the Americans With Disabilities 

Act amends the Rehabilitation Act to provide that the 

term "individual with a disability" does not include 

"an individual who is currently engaging in the illegal 

use of drugs, when a covered entity acts on the basis 

of such use." Whether use of illegal drugs is "current" 

is determined as of the date of the notice of proposed 

adverse action, so an appellant's entry into treatment 

after that date comes too late to protect him under the 

Act. 

INTERIM RELIEF 

Russell v. Department of Justice, 68 M.S.P.R. 337 

(1995)

Where the appellant is the only party to file a 

petition for review of an initial decision ordering 

interim relief, the agency, upon order, must submit 

proof of compliance. This is the first case in which 

the Board, under its recent regulatory amendment, 

retained jurisdiction over the issue of interim relief to 

assure compliance, despite its remand of the appeal 

on the merits to the field office. 

MISCELLANEOUS 

Kuykendall v. Department of Veterans Affairs, 68 

M.S.P.R. 314 (1995)

A status quo ante analysis is not per se 

applicable in enforcing settlement agreements; nor is 

it applicable simply because the appellant asserts that 

the agency has retaliated against and harassed her. 

Allegations of harassment and retaliation are, 

however, relevant to a determination of whether the 

agency complied in good faith with a settlement's 

reinstatement term, even though the parties' 

agreement does not specifically prohibit reprisal upon 

reinstatement. To establish such a breach the 

appellant must show that the agency's "proven ... 

actions, under the totality of the circumstances, 

amounted to an unjustified and substantial 

deprivation of her rights" as the incumbent of her 

position. It is not necessary, however, to establish a 

prohibited personnel practice to establish a breach. 

Groshans v. Department of the Navy, 67 M.S.P.R. 

629 (1995)

The Board held that a conversation about a 

request for a security presence at a hearing concerns a 

procedural security matter, which need not be raised 

in writing, and not the merits of the case. It further 

found that the administrative judge may require such 

a presence on his own initiative and that the failure to 

disclose the circumstances surrounding a request for 

a security presence does not violate the appellant's 

rights. 

44 
APPENDIX B -SIGNIFICANT 

BOARD DECISIONS 

ORIGINAL JURISDICTION 

CASES 

This appendix contains summaries of significant 

original jurisdiction cases decided by the Board 

during fiscal year 1995. 

Board decisions are published in West 

Publishing Company's United States Merit Systems 

Protection Board Reporter. The M.S.P.R. citations 

below are to that publication. 

Board decisions and weekly summaries of 

significant decisions are available on the Government 

Printing Office's Federal Bulletin Board. Dial 202-

512-1387 via computer modem, and go to the MSPB 

LIBRARY. Assistance is available from GPO by 

calling 202-512-1530. Certain significant Board 

decisions are also avail- able on the OPM Mainstreet 

BBS, 202-606-4800. 

SPECIAL COUNSEL DISCIPLINARY 

ACTIONS (NON-HATCH ACT) 

Special Counsel v. Santella and Jech, 65 M.S.P.R. 

452 (1994)The applicable standard under the 

Whistleblower Protection Act in Special Counsel 

disciplinary actions involving reprisal for 

whistleblowing is whether the protected disclosure 

was a significant factor in the alleged retaliation. In 

order to meet the significant factor test, the Special 

Counsel must demonstrate that the protected 

disclosure played an important role in the allegedly 

retaliatory action and that there was an improper 

motiva- 

 tion for the action. The test is not met if the official 

would have taken the same action in the absence of 

the protected disclosure. 

SPECIAL COUNSEL STAY

REQUESTS

Special Counsel v Department of the Treasury, 

65 M.S.P.R. 146 ('1994) 

Placement on administrative leave is a personnel 

action that the Board may stay under the 

Whistleblower Protection Act because it constitutes a 

significant change in duties or responsibilities which 

is inconsistent with the employee's salary or grade 

level. 

REGULATION REVIEWS

Senior Executives Association v. Office of Personnel 

Management, 67 M.S.P.R. 643 (1995)

The regulation concerning detailing career 

Senior Executive Service (SES) employees during 

the 120-day period following the appointment of a 

new agency head or noncareer supervisor does not 

violate the statutory moratorium on involuntarily 

reassigning career SES employees during that period 

or require the commission of a prohibited personnel 

practice. The regulation providing that career SES 

employees could not earn credit hours does not 

violate the statute governing flexible work schedules 

or require the commission of a prohibited personnel 

practice. The Senior Executive Association is an 

"interested person" entitled to seek review of 

regulations applicable to its members. 

45 
APPENDIX C - SIGNIFICANT 

COURT DECISIONS 

Significant decisions issued by the U.S. Court of 

Appeals for the Federal Circuit on review of final 

Board decisions during fiscal year 1995 included the 

following: 

AFFIRMATIVE DEFENSES 

Procedural Error 

Diaz v. Department of the Air Force, 63 F.3d 1107 

(Fed. Cir. 1995) 

An agency's violation of a statutory procedural 

requirement does not necessarily invalidate the 

agency action, especially where Congress has not 

provided any consequences for such procedural 

violation. The fact that the agency issued its decision 

to remove the employee more than 30 days after the 

notice period expired did not mandate reversal of the 

removal when the employee did not show that this 

procedural error affected the outcome of the agency's 

decision. 

Reprisal for Whistleblowing

Watson v. Department of Justice, 64 F.3d 1524 (Fed. 

Cir. 1995)

When the facts supporting an agency's 

disciplinary action against an employee are 

intertwined with facts disclosed by the employee in a 

protected whistleblowing disclosure, the agency must 

prove by clear and convincing evidence that it would 

have taken the same action absent the disclosure, but 

not that it eventually would have discovered the 

content of the disclosures from another source. 

APPEALABLE ACTIONS 

Loss of Security Clearance 

Drumheller v. Department of the Army, 49 F.3d 1566 

(Fed. Cir. 1995) 

In reviewing a removal action based on the 

revocation of a security clearance, the Board only has 

jurisdiction to consider whether the agency provided 

the employee with the procedural protections 

required by statute, regulation, and the Constitution. 

The Board may not review the substance of the 

underlying security clearance determination. 

Misuse of Government-Owned Vehicle 

Chufo v. Department of the Interior, 45 F.3d 419 

(Fed. Cir. 1995)

A car that was rented by an employee using a 

Government-issued credit card while on an official 

business trip was not a Government-owned vehicle 

because the car was neither owned nor leased by the 

Government, and the employee was not properly 

charged with misuse of a Government-owned vehicle 

when he used the car for personal business. 

Kimm v. Department of the Treasury, 61 F.3d 888 

(Fed. Cir. 1995)

In order to sustain a charge of misuse of a 

Government-owned vehicle, the agency must prove 

either that the employee had actual knowledge that 

the use would be characterized as nonofficial or that 

the employee acted in reckless disregard as to 

whether the use was for nonofficial purposes. The 

agency did not show the requisite intent to support its 

charge of misuse of a Government-owned vehicle 

where the employee used the vehicle to transport his 

child to and from day care on his way to and from 

work while his wife was ill. 

46 
Theft

Chauvin z?. Department of the Navy, 38 F.3d 563 

(Fed. Cir. 1994)

By charging the appellant with unauthorized 

possession and attempted removal of Government 

property, the agency charged him with two separate 

charges, rather than one charge with two elements, 

because the charge stated two separate acts of 

misconduct that are not dependent upon each other. 

The court found that the agency did not prove its 

charge of attempted removal of Government property 

because the agency did not show that the appellant 

acted with the requisite intent. 

King v. Nazelrod, 43 F.3d 663 (Fed. Cir. 1994)

When an agency charges an employee with a 

criminal offense, the agency must prove all the 

elements associated with the crime. The agency did 

not prove its charge of theft of an inmate's money 

because it did not prove that the employee acted with 

the intent to permanently deprive the owner of 

possession of the money. 

ATTORNEY FEES

Irvin v. Small Business Administration, 45 F.3d 417 

(Fed. Cir. 1995)

The employee was not the prevailing party 

entitled to an award of attorney fees where in her 

amended appeal of her removal she sought 

reinstatement, a promotion, a voluntary resignation, 

and back pay, but she settled her appeal for a 

voluntary resignation and clean personnel record. In 

order to be a prevailing party, the employee must 

obtain all, or a significant portion of, the relief sought 

in filing the appeal. 

BOARD PROCEDURES AND

TIMELINESS

Interim Relief 

King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994)

In determining whether an agency has complied 

with an interim relief order, the Board has no 

jurisdiction to review an agency's decision that the 

employee's return or presence in the workplace would 

be unduly disruptive. The Board's authority is 

limited to determining whether an undue disruption 

determination has been made and whether the agency 

has provided the employee with appropriate pay, 

benefits, and compensation. 

Timeliness 

Pyles v. Merit Systems Protection Board, 45 F.3d 411 

(Fed. Cir. 1995)

When an appellant presents evidence that she 

suffers from a permanent or progressive medical 

condition, the condition will be assumed to continue 

after the date of the diagnosis absent evidence to the 

contrary, and the Board abuses its discretion by 

finding that tire condition did not continue. 

ENFORCEMENT OF BOARD

ORDERS

Discrimination Claims

King v. Reid, 59 F.3d 1215 (Fed. Cir. 1995)

The Board has jurisdiction to determine whether 

an agency has violated a Board order or a settlement 

agreement that has been entered into the record; 

however, the Board may not decide a claim of 

discrimination that is alleged to be a basis in whole or 

in part for the agency's acts of noncompliance. An 

allegation of noncompliance 

47
with a Board order is not an appealable action to 

which a claim of discrimination can be appended to 

create a mixed case. 

EVIDENCE

Conflicting Evidence

Holmes v. Department of Veterans Affairs, 58 F.3d 

628 (Fed. Cir. 1995)

The Board erred by finding that the agency 

complied with the terms of the settlement agreement 

without addressing and resolving the conflicting 

evidence in the record concerning the agency's 

compliance. 

Recanted Admissions

Uske v. U.S. Postal Service, 56 F.3d 1375

(Fed. Cir. 1995)

An adverse action will not be sustained when the 

only proof that the misconduct occurred is a recanted 

admission. However, where there is other evidence 

that the misconduct occurred, the agency may use a 

recanted admission along with other evidence to 

support the other aspects of its charge. 

INDIVIDUAL RIGHT OF ACTION

Protected Disclosures

Horton v. Department of the Navy, 66 F.3d 279 (Fed. 

Cir. 1995)

A disclosure to the person who is the subject of 

the disclosure is generally not protected 

whistleblowing; the purpose of the Whistleblower 

Protection Act is to encourage disclosure of 

wrongdoing to persons who are in a position to 

remedy it. A disclosure that recites violations of 

rules, regulations, or managerial responsibility, which 

on their face are covered by 5 U.S.C. §2302(b)(8), 

are protected disclosures absent evidence that the 

whistleblower has 

no reasonable belief that a violation of law has 

occurred. A protected disclosure cannot be a 

contributing factor to a personnel action that was 

proposed before the disclosure was made. 

JUDICIAL REVIEW

Non-final Board Orders 

Haines v. Merit Systems Protection Board, 44 F.3d 

998 (Fed. Cir. 1995)

A letter by the Clerk of the Board denying an 

appellant's request to reopen a final Board decision is 

not a final Board order that may be appealed to the 

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

Scope of Review

Anthony v. Office of Personnel Management, 58 F.3d 

620 (Fed. Cir. 1995)

The scope of review of the Board's decision in a 

disability retirement case under the Federal 

Employees Retirement System is the same as the 

scope of review in disability retirement cases under 

the Civil Service Retirement System. Judicial review 

is limited to determining whether there has been a 

substantial departure from important procedural 

rights, a misconstruction of the governing legislation, 

or some like error going to the heart of the 

administrative determination. The court may not 

review the Board's findings of fact. 

48 
 

JURISDICTION

Actions Taken Pursuant to a Last Chance 

Settlement Agreement 

Briscoe v. Department of Veterans Affairs, 55 F.3d 

1571 (Fed. Cir. 1995)

In order to determine whether an employee has 

raised a non-frivolous allegation that she was 

incompetent to enter into a last chance agreement, the 

Board may properly request sufficient evidence to 

determine if, in the first instance, there is any support 

for her mere allegation. 

Link v. Department of the Treasury, 51 F.3d 1577 

(Fed. Cir. 1995)

An agency breaches a last chance settlement 

agreement when it fails to comply with a provision in 

a way that was material to the agreement. The 

employee need not show that the agency acted in bad 

faith or arbitrarily. When a material breach is shown, 

the Board may not enforce any waiver of appeal 

rights contained in the agreement. 

Excepted Service Employees 

Forest v. Merit Systems Protection Board, 47 F.3d 

409 (Fed. Cir. 1995)

To be entitled to file an appeal, an employee in 

the excepted service must serve two years of current 

continuous service in the same or similar position 

under a permanent appointment. An employee 

cannot tack service under a temporary appointment 

onto his service under a permanent appointment in 

order to meet this two-year period. 

Involuntary Resignation 

Braun v. Department of Veterans Affairs, 50 F.3d 

1005 (Fed. Cir. 1995)

An employee need only present a nonfrivolous 

allegation that his resignation was coerced, not prove 

his claim by preponderant evidence, in order to 

warrant a hearing on that issue. 

Suspension of Fourteen Days or Less 

Jennings v. Merit Systems Protection Board, 59 F.3d 

159 (Fed. Cir. 1995)

Two fourteen-day suspensions imposed for 

different acts of misconduct, although served 

consecutively, could not be aggregated to constitute a 

single twenty-eight-day suspension in order to 

establish Board jurisdiction. 

Temporary Employees 

Todd v. Merit Systems Protection Board, 55 F.3d 

1574 (Fed. Cir. 1995)

The Civil Service Due Process Amendments did 

not extend appeal rights to an employee who was 

appointed pursuant to a statute that allowed the 

Department of Defense to appoint employees for its 

dependents schools without regard to the civil service 

laws. 

RETIREMENT BENEFITS

Computation of Length of Service 

Begley v. Office of Personnel Management, 60 F.3d 

804 (Fed. Cir. 1995)

The Office of Personnel Management's method 

of calculating length of service assuming that each 

calendar month has thirty days, and that each year 

has 360 days-reasonably implements the statute that 

sets out the calculation of length of 

49 
service for retirement eligibility under the Civil 

Service Retirement System. 

Election Not to Make Deposit 

Collins v. Office of Personnel Management, 45 F.3d 

1569 (Fed. Cir. 1995)

An employee is bound by his written election 

not to make retirement contributions to cover his 

military service, absent a showing of mental 

incompetence, duress, or fraud. 

Former Spouses 

Davenport v. Office of Personnel Management, 62 

F.3d 1384 (Fed. Cir. 1995)

In interpreting a qualified domestic relations 

order providing a Federal employee's former spouse 

an interest in the employee's retirement benefits, the 

Office of Personnel Management may look to the 

divorce decree to insure that the retirement benefits 

are apportioned in accordance with the intent of the 

order. 

Holder v. Office of Personnel Management, 47 F.3d 

412 (Fed. Cir. 1995)

A Federal employee's former spouse does not 

meet the statutory requirements for a survivor annuity 

under the Civil Service Retirement Spouse Equity 

Act if she did not apply for benefits by the statutory 

deadline, May 7, 1989. An employee's election upon 

retirement of a survivor annuity for his spouse 

extinguishes upon their subsequent divorce. 

Vallee v. Office of Personnel Management, 58 F.3d 

613 (Fed. Cir. 1995)

A Federal employee's failure to elect a survivor 

annuity for his former wife after their divorce as 

required by the Civil Service Retirement Spouse 

Equity Act was excused by the Office of Personnel 

Management's failure to notify the employee that he 

must make such an election where the employee 

elected a survivor annuity in favor of his then wife at 

the time of his retirement and he declined to have his 

annuity restored to its full value after the divorce. 

Indefinite Service 

Rosete v. Office of Personnel Management, 48 F.3d 

514 (Fed. Cir. 1995)

Indefinite appointments in the excepted service 

may properly be interpreted as being "temporary or 

intermittent," and thus do not constitute covered 

service for establishing entitlement to a civil service 

retirement annuity. 

Recomputed Annuity

Pugach v. Office of Personnel Management, 46 F.3d 

1081 (Fed. Cir. 1995)

In order to become entitled to have his 

retirement annuity recomputed under 5 U.S.C. §8344, 

a Federal employee who has retired and subsequently 

been reemployed by the Federal Government must 

complete five years of continuous service. 

Spousal Consent to a Lump Sum Annuity 

Carpisassi v. Office of Personnel Management, 46 

F.3d 1094 (Fed. Cir. 1995)

A retired Federal employee may not elect a lump 

sum annuity unless the employee timely files a notice 

that his spouse consents to the lump sum. OPM's 

failure to respond to an employee's request for an 

extension of time and misinformation as to the 

applicable deadline did not justify waiver of this 

requirement because the employee did not obtain his 

wife's consent by the time the deadline expired. 

50 
APPENDIX D- MERIT 

SYSTEMS STUDIES AND 

REVIEWS OF OPM

SIGNIFICANT ACTIONS 

Leadership for Change: Human Resource 

Development in the Federal Government (July 1995) 

- This report covers the Board's study of the 

employee training and development programs that 

constitute human resource development (HRD) in the 

Federal Government. It concludes that while the 

level of employee satisfaction with specific programs 

and presentations is fairly high, the level of 

satisfaction with the overall resources for HRD is 

rather low. The Board finds that the level of funding 

available for HRD is declining under increasing 

budget pressure. Ironically, this same pressure is 

requiring the retraining of the workforce to work 

more efficiently and effectively in reengineered 

organizations. The Board also finds that the HRD 

function needs to be integrated into the strategic 

planning and evaluation processes to ensure that 

organizations' developmental priorities are being met. 

Current HRD staffs must be engaged more in the 

strategic planning process rather than relegated to the 

role of coordinating specific training courses and 

compiling statistics on the completion of such 

courses. Further, the Board finds the Office of 

Personnel Management needs to use its role as the 

Government's lead human resources agency to 

educate Congress, the Administration, and individual 

agencies on the need to allot resources to develop the 

organizations of the future. 

Sexual Harassment in the Federal Workplace: 

Trends, Progress, Continuing Challenges (October 

1995) - This report presents the results of a 

Governmentwide survey of Federal workers who 

provided data on their experiences with sexual 

harassment and the effects it had on them, as well as 

information on their attitudes and beliefs about 

relationships in the workplace. The survey was the 

centerpiece of a study undertaken to update the 

Board's 1980 and 1987 studies of this issue. 

The report includes a review of judicial 

developments and the initiatives agencies described 

to prevent or eliminate sexual harassment in their 

organizations. The Board found that while the 

Federal workforce is more sensitive to the problem of 

sexual harassment, the problem has by no means 

disappeared. Nevertheless, the Government has 

made progress in building a greater understanding of 

the relevant underlying issues and sensitivity to how 

people are treated in the workplace. 

The Rule of Three in Federal Hiring: Boon or 

Bane? (December 1995) - This report analyzes the 

effect of the rule of three on competitive Federal 

hiring. It finds that the rule of three, which requires 

managers to hire from among the top three candidates 

referred to them by an examining office, does not 

advance merit hiring. Too often, this rule requires 

the use of random number tables to determine the 

order in which otherwise equal candidates will be 

listed, essentially turning the referral stage into a 

lottery. The report also challenges conventional 

wisdom by finding that the rule of three often does 

not limit managers' choices in hiring because in many 

instances there are no more than three qualified 

candidates for each job vacancy. The Board report 

concludes that the current rule should be replaced by 

one that better takes into account the supply of 

applicants and that gives managers a greater role in 

selecting among candidates. 

51
The report also analyzes the interaction of 

veterans preference laws with the rule of three and 

finds that the interaction of these two laws varies by 

the kind of hiring procedure used. Further, while 

proportionately more veterans are referred for hiring 

through the traditional process of hiring from 

standing inventories of candidates ("register hiring"), 

proportionately greater numbers of veterans are 

actually hired through a hiring process where 

applicants apply for a specific job vacancy ("case 

examining"). The report also casts doubt on another 

conventional belief-that the presence of candidates 

with veterans preference often prevents managers 

from hiring preferred candidates. The report finds 

instead that the interaction of the rule of three with 

veterans preference laws has not, in fact, significantly 

reduced management choices. In other words, while 

the rule of three can have a negative impact on the 

competitive hiring process, veterans preference laws 

are not the cause of that negative impact. 

52 
CUSTOMER SERVICE STANDARDS

The Merit Systems Protection Board has two core missions: (1) Adjudication of appeals brought to it under the 

provisions of law and regulation, and (2) Oversight of the Federal merit systems. These two missions are 

authorized in the Civil Service Reform Act of 1978.

We have established these standards to assure our customers that they receive the quality of service to which they 

are entitled and to assure the public as a whole that we are ably promoting and protecting the Federal merit 

systems.

MISSION I - Adjudication of Appeals

1. We will make our regulations easy to understand and our procedures easy to follow. 

2. We will process appeals in a fair, objective manner, according respect and courtesy to all parties. 

3. We will promptly and courteously respond to customer inquiries. 

4. We will facilitate the settlement of appeals. 

5. We will issue readable decisions based on consistent interpretation and application of law and regulation. 

6. We will issue decisions in initial appeals within 120 days of receipt and within 110 days on petitions for 

review, except where full and fair adjudication of an appeal requires a longer period. 

7. We will make our decisions readily available to our customers. 

MISSION II - Oversight of the Federal Merit Systems and the U.S. Office of Personnel Management

1 . We will conduct research on topics and issues relevant to the effective operation of the Federal merit systems 

and the significant actions of the U.S. Office of Personnel Management; perform sound, objective analysis; and 

where warranted, develop practical recommendations for improvement. 

2. We will issue timely, readable reports on the findings and recommendations of our research and make these 

reports available to all interested individuals and parties. 

3. We will enhance the constructive impact of our studies and reports through outreach efforts. 

We will conduct surveys of our customers from time to time to see how well we are meeting these standards. 

However, if at any time, you have comments or suggestions concerning our service, we invite you to provide 

feedback to our Chairman, Mr. Ben Erdreich, through the Clerk of the Board, at 1120 Vermont Avenue, NW, 

Washington, DC 20419, telephone (202) 653-7200, FAX number (202) 653-7130. Electronic mail may be sent 

over the Internet to mspb@mspb.gov.