The Chairman 

U.S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, DC 20419 

February 1991 

Sirs: 

In accordance with 5 U.S.C. 1206, I am pleased to submit the Twelfth Annual Report of the U.S. 

Merit Systems Protection Board. The report reviews the significant activities of the Board during 

Fiscal Year 1990 and includes a special section on our adjudication of cases brought by or on behalf 

of whistleblowers under the Whistleblower Protection Act of 1989. 

During the fiscal year, administrative judges in the Board's regional offices issued almost 7,800 

decisions on appeals, including addendum cases. The 3-member bipartisan Board issued decisions 

on over 1,400 petitions for review of the initial decisions of administrative judges, including 

addendum cases. In this same period, 97 percent of final Board decisions reviewed by the U.S. 

Court of Appeals for the Federal Circuit were unchanged. 

The Board issued 43 decisions in original jurisdiction cases--complaints brought by the Special 

Counsel (including Hatch Act cases), Special Counsel stay requests, requests to review a regulation of 

the Office of Personnel Management, and proposed actions against administrative law judges. This 

number includes one final Board decision in an agency's proposed furlough of administrative law 

judges in the event of sequestration. 

During the fiscal year, the Board published seven major reports of merit systems studies and OPM 

oversight reviews. Among these were a report on why employees leave Federal service, a study of 

efforts by the Office of Personnel Management (OPM) to improve recruitment, and an analysis of 

OPM's job classification and qualifications systems. 

Among the other significant accomplishments of the Board during the fiscal year were the 

publication of final regulations for the adjudication of whistleblower appeals and the issuance of two 

new public information publications explaining the Board's jurisdiction and procedures. At Board 

headquarters, a new hearing room was named in honor of Frances Perkins, former Secretary of 

Labor and Civil Service Commissioner. The naming of the room reflects the Board's continuing 

effort to acknowledge the contributions made by great leaders of the past to the advancement of 

the Federal merit system. 

Respectfully submitted, 

Daniel R. Levinson 

The President 

The President of the Senate 

The Speaker of the House of Representative 
TABLE OF CONTENTS 

Page 

Board Mission and Organization................................................... 7 

Mission........................................................................... 7

Board Members .............................................................. 8

Board Organization........................................................10

Regional Officials ..........................................................13

Highlights of Fiscal Year 1990 Activities......................................15 

Adjudication of Whistleblower Cases under 

the Whistleblower Protection Act of 1989.............................18 

Adjudication: Appellate Jurisdiction............................................ 26 

Jurisdiction ...................................................................26

Regional Offices ............................................................26

Headquarters ................................................................32

Special Panel .................................................................35

Adjudication: Original Jurisdiction............................................ 37 

Litigation.........................................................................................41 

Reviews of OPM Significant Actions 

and Merit Systems Studies ................................................... 42 

Outreach Activities........................................................................ 45 

Administration, Finance, and Human Resources ...................... 48 

Administration...............................................................48

Financial Statement.......................................................51

Human Resources .........................................................51

Appendix A - Significant Board Decisions 

Appellate Jurisdiction Cases....................................... 55 

Appendix B - Significant Board Decisions 

Original Jurisdiction Cases......................................... 67 

Appendix C - Significant Litigation............................................. 70 

Appendix D - Special Studies ....................................................... 72 
Board Mission and Organization 

MISSION 

The U.S. Merit Systems Protection Board is an i n d e p e n d e n t . , q u a s i - 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 has a statutory 

mandate to adjudicate appeals from personnel actions for the nation's largest employer. It has 

worldwide jurisdiction, wherever Federal civil servants are found. Additionally, under the Hatch 

Political Activities Act, it exercises jurisdiction over state and local government employees in federallyfunded positions. 

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. 

The Board was established by Reorganization Plan No. 2 of 1978, which was codified by the 

Civil Service Reform Act of 1978 (CSRA), Public Law No. 95-454. The CSRA, which became effective 

January 11, 1979, replaced the Civil Service Commission with three new independent agencies: the 

Office of Personnel Management, which manages the Federal work force; the Federal Labor Relations 

Authority, which oversees Federal labor-management relations; and the Board. 

The Board assumed the employee appeals function of the Civil Service Commission and was given 

the new responsibilities to perform merit systems studies and to review the significant actions of OPM. 

The CSRA also created the Office of Special Counsel, which investigates allegations of prohibited 

personnel practices, prosecutes violators of civil service rules and regulations, and enforces the Hatch 

Act. Although established as an office of the Board, the Special Counsel has functioned independently 

as a prosecutor of cases before the Board. In July 1989, the Office of Special Counsel became an 

independent Executive branch agency. 

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. 
BOARD MEMBERS 

CHAIRMAN 

DANIEL R 

LEVINSON became 

Board Chairman on 

August 15, 1986, 

following Presidential 

nomination and Senate 

confirmation. At the 

time of his appointment, 

Mr. Levinson was 

General Counsel of the 

U.S. Consumer Product 

Safety Commission, a 

position he had held 

since March 1985. Previously, he served for two years 

as Deputy General Counsel of the Office of Personnel 

Management Prior to joining OPM, Mr. Levinson was, 

for six years, an associate and partner in the 

Washington, DC law firm of McGuiness & 

Williams, where he represented primarily private 

sector management in a wide variety of employment 

law matters. 
Vice Chairman MEMBER

JESSICA L. PARKS took the oath of office as a 

Member of the Board on May 18, 1990, following 

nomination by President Bush and confirmation by 

the Senate. At the time of her appointment, Ms. 

Parks was Associate Regional Counsel for Litigation 

and Program Enforcement for the U.S. Department 

of Housing and Urban Development in Atlanta, 

Georgia. From 1982 to 1985, she served as an 

administrative judge in the Board's Atlanta Regional 

Office. Ms. Parks succeeds Samuel W. Bogley, who 

served as Member of the Board under a recess 

appointment by President Reagan from 

MARIA L. JOHNSON was nominated to the Board 

by President Reagan on March 18, 1983. She was 

confirmed by the Senate on May 6, 1983, and was 

designated Vice Chairman on September 19, 1983. 

From March 1, 1986 to August 15, 1986, Ms. 

Johnson served as the Board's Acting Chairman. 

At the time of her appointment to the Board, Ms. 

Johnson was a commercial loan officer with the 

Security National Bank in Anchorage, Alaska. 

From 1978 to 1981, she served as an associate with 

the law firm of Lambert, Griffin & McGovern in 

Washington, DC. 

November 23, 1988 until November 22, 1989. 
BOARD ORGANIZATION 

The Chairman, Vice Chairman, and Member adjudicate the cases brought to the Board. Each heads 

his/her individual office. The Chairman, by statute, is the chief executive and administrative officer of the 

Board. 

The Executive Director manages the operations and programs of the Board's headquarters and regional 

offices, under authority delegated by the Chairman. This delegation includes the authority to make final 

decisions in the areas of personnel management, fiscal management, document security, procurement and 

contracts, and general administrative support services. The Executive Director reports directly to the 

Chairman. The Deputy Executive Director assists the Executive Director in the management of the Board's 

operations and programs. 

The Office of Regional Operations manages the appellate functions of the MSPB regional offices and 

reviews the quality of initial decisions issued by administrative judges in the regional offices. The 11 MSPB 

Regional Offices are located in Atlanta, Boston, Chicago, Dallas, Denver, New York, Philadelphia, St Louis, 

San Francisco, Seattle, and Washington, DC. These offices receive and process the initial appeals filed with 

the Board. Administrative judges in the regional offices have the primary function of adjudicating appeals 

and issuing fair, timely, and well-reasoned decisions. 

TThe Office of Appeals Counsel assists the Board in 

adjudicating petitions for review from initial decisions issued by 

administrative judges in the regional offices. The office receives and 

analyzes the petitions, researches applicable laws, rules and 

precedents, and submits proposed opinions to the Board for final 

adjudication. It also processes interlocutory appeals of rulings made 

by administrative judges in the regional offices, makes 

recommendations to the Board on motions filed during the review 

process, 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 General Counsel is legal counsel to the 

Board. The office provides advice to the Board and its organizational 

components on matters of law arising in day-to-day operations. It 

represents the Board in litigation, prepares proposed decisions and 

orders in enforcement cases, reviews OPM regulations, and drafts 

proposed final decisions for the Board in original jurisdiction cases. 

The office manages legislative policy, congressional relations, and public affairs functions for the Board. It is 

also responsible for conducting the Board's ethics program. 

The Office of Administrative Law Judge hears cases governed by the Administrative Procedure Act and 

other cases assigned by the Board. 

The Office of the Clerk of the Board performs the Board's ministerial functions to facilitate timely 

adjudication. These include receiving and processing petitions for review and actions under the Board's 

original jurisdiction authority, ruling on certain procedural matters, and issuing the Board's Opinions 

and Orders. The Clerk is also responsible for the Board's records, mail, correspondence, document security, 

and reports management programs. The office certifies official records to the courts and Federal 

administrative agencies, maintains the Board's law library, and administers the Board's Freedom of 

Information Act, Privacy Act, and Government in the Sunshine Act programs. 

The Office of the General Counsel is legal counsel to the 

Board. The office provides advice to the Board and its organizational 

components on matters of law arising in day-to-day operations. It 

represents the Board in litigation, prepares proposed decisions and 

orders in enforcement cases, reviews OPM regulations, and drafts 

proposed final decisions for the Board in original jurisdiction cases. 

The office manages legislative policy, congressional relations, and public affairs functions for the Board. It is 

also responsible for conducting the Board's ethics program. 

Lucretia F. Myers, 

Executive Director

The Office of Administrative Law Judge hears cases governed by the Administrative Procedure Act and 

other cases assigned by the Board. 

The Office of the Clerk of the Board performs the Board's ministerial functions to facilitate timely 

adjudication. These include receiving and processing petitions for review and actions under the Board's 

original jurisdiction authority, ruling on certain procedural matters, and issuing the Board's Opinions 

and Orders. The Clerk is also responsible for the Board's records, mail, correspondence, document security, 

and reports management programs. The office certifies official records to the courts and Federal 

administrative agencies, maintains the Board's law library, and administers the Board's Freedom of 

Information Act, Privacy Act, and Government in the Sunshine Act programs. 
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 an annual oversight review of the 

Office of Personnel Management. Reports of these studies are submitted to the President and the 

Congress, as required by law. 

The Office of Management Analysis develops and coordinates internal management programs 

and projects. The office also produces the Board's annual report to the President and the 

eport on the Board's decisions in 

appe n 

 of Administration manages the Board's 

adm The 

rty 

s of 

or 

rity, 

intains 

e 

The Office of Equal Employmen ts, and evaluates the Board's 

equa d 

d 

pector General is the Board's internal auditor. The independent 

Insp

neral 

r 

eneral 

Congress, the annual r

llate and original jurisdiction cases, and public informatio

publications. 

The Office

inistrative operations. It is made up of three divisions: 

Financial and Administrative Management Division 

administers the budget, accounting, procurement, prope

management, physical security, and general services function

the Board. The Personnel Division manages personnel 

programs and assists managers, employees, and applicants f

employment. It administers staffing, classification, employee 

relations, performance management, payroll, personnel secu

and training functions. The Information Resources 

Management Division develops, implements, and ma

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

Board manage its caseload efficiently and carry out its 

administrative responsibilities. 

t Opportunity plans, implemen

Michael W Crum Deputy 

Executive Director 

l employment opportunity (EEO) programs. It develops and implements operating guidelines an

instructions for the Board's EEOprograms, manages the Board's affirmative action programs, 

evaluates the Board's EEO programs, and prepares reports of findings with recommendations for 

improvements or corrections. It provides for precomplaint counseling, processes complaints of allege

discrimination, and issues proposed dispositions of such complaints. The office also furnishes advice 

and assistance on affirmative action initiatives to the Board's managers and supervisors. The Director,

Office of EEO, reports directly to the Executive Director and has direct access to the Chairman on 

matters of EEO concern. 

The Office of the Ins

ector General plans and directs audits, investigations, and internal control evaluations in

compliance with the requirements of the Office of Management and Budget and the U.S. Ge

Accounting Office. The Inspector General evaluates the programs and operations of the Board in orde

to promote economy and efficiency, to prevent and detect fraud and abuse, and to advise the 

Chairman and Executive Director of any problems and deficiencies detected. The Inspector G

reports directly to the Executive Director. 
U.S. MERIT SYSTEMS PROTECTION 

BOARD 
Mark Kelleher R.J. Payne William Carroll 

Director, Office of Regional Director Regional Director 

Regional Operations Atlanta Office Boston Office 

Martin W. Baumgaertner Paula A. Latshaw Gail E. Skaggs 

Regional Director Regional Director Regional Director 

Chicago Office Dallas Office Denver Office 

Sean P. Walsh Lonnie Crawford Earl A. Witten 

Regional Director Regional Director Regional Director 

New York Office Philadelphia Office St. Louis Office 

Denis Marachi Carl Berkenwald P.J. Winzer 

Regional Director Regional Director Regional Director 

San Francisco Office Seattle Office Washington, DC Office 
REGIONAL OFFICE 

JURISDICTIONS 

Atlanta Regional Office--Alabama, Florida, Georgia, Mississippi, North Carolina, and South 

Carolina 

Boston Regional Office-- Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and 

Vermont 

Chicago Regional Office-- Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin 

Dallas Regional Office--Arkansas, Louisiana, Oklahoma, and Texas 

Denver Regional Office--Arizona, Colorado, Kansas, Montana, Nebraska, Nevada, New 

Mexico, North Dakota, South Dakota, Utah, and Wyoming 

New York Regional Office New York, Puerto Rico, Virgin Islands, and the following counties in New 

Jersey: Bergen, Essex, Hudson, Hunterdon, Morris, Passaic, Somerset, Sussex, Union, and Warren 

Philadelphia Regional Office-- Delaware, Pennsylvania, Virginia (except cities and counties served by 

Washington Regional Office -see below), West Virginia, and the following counties in New Jersey: 

Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Middlesex, Monmouth, 

Ocean, and Salem 

St. Louis Regional Office-- Iowa, Kentucky, Missouri, and Tennessee 

San Francisco Regional Office California 

Seattle Regional Office 

Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific oversea areas 

Washington Regional Office Washington, DC, Maryland, all overseas areas not otherwise covered, and 

the following cities and counties in Virginia: Alexandria, Arlington, Fairfax City, Fairfax County, Falls 

Church, Loudoun, and Prince William 
Highlights of Fiscal Year 1990 Activities 

During Fiscal Year 1990, the Board's jurisdiction over Fede ral employee appeals 

was expanded for the fourth time in as many years. In August 1990, the Civil Service Due Process 

Amendments (Public Law No. 101-376) granted approximately 100,000 additional employees in the 

excepted service the right to appeal agency adverse actions and performance-based actions to the 

Board. The Ethics Reform Act of 1989 (Public Law No. 101-194) included a new requirement that 

members of the Senior Executive Service be recertified every three years, beginning in 1991, and 

granted executives who are denied recertification the right to appeal to the Board. These expansions of 

jurisdiction followed the establishment of the new individual right of action appeal under the 

Whistleblower Protection Act of 1989 and the extension to Postal Service supervisors and managers of 

the right to appeal adverse actions by the Postal Employee Appeal Rights Act of 1987. 

Fiscal Year 1990 also marked the Board's first full year of experience in adjudicating cases under 

the provisions of the Whistleblower Protection Act (Public Law No. 101-12), which took effect on July 

9, 1989. The following special section of this report discusses the major issues that arose and the 

Board's significant decisions in cases covered by the Whistleblower Protection Act. 

The final month of the fiscal year saw a large influx of cases from agencies proposing to furlough 

their administrative law judges. These cases were the result of the anticipated need for governmentwide furloughs to meet the requirements of a sequester expected to begin October 1, 1990. Although 

most Federal employees may not appeal a furlough until after it takes effect, an administrative law 

judge, by law, must be afforded the opportunity for a hearing and a decision by the Board before a 

proposed furlough of 30 days or less may be effected. In the last weeks of the fiscal year, the Board 

received 23 complaints involving proposed furloughs of a total of 1,053 administrative law judges. By 

the end of the fiscal year, 20 recommended decisions had been issued. The Board issued one final 

decision covering nine administrative law judges. 

In Fiscal Year 1990, administrative judges in the Board's regional offices issued 6,932 decisions on 

appeals, nearly as many as in the previous fiscal year. This number includes 252 decisions issued on 

whistleblower appeals—both those brought under the new individual right of action and those 

otherwise appealable to the Board. The administrative judges also issued 75 decisions on requests for 

stays of personnel actions and 840 decisions in addendum cases—requests for attorney fees, 

compliance proceedings, and remands. 

The Board's regional offices maintained an already impressive record of case processing timeliness, with an average processing time of 72 days. The Board's self-imposed time standard for the 

issuance of decisions on appeals is 120 days from receipt of the appeal by the regional office. In Fiscal 

Year 1990, 99.4 percent of all appeals were decided within 120 days. 

The rate of settlement of appeals in Fiscal Year 1990 was 49 percent, the same as in Fiscal Year 

1989. This suggests that the settlement rate, which increased dramatically during the fiscal years 

1984 through 1988, has stabilized. The use of settlement procedures has resulted in significant cost 

savings, without impinging on the rights of the parties. 

At headquarters, the Board issued decisions on 1,310 petitions for review of initial decisions made 

by its administrative judges, a 15 percent increase from the previous fiscal year. The Board decided 

133 petitions for review of addendum case decisions and issued 5 decisions on interlocutory appeals of 

administrative judges' rulings on stay requests. 
The Board also issued 43 decisions in cases under its original jurisdiction, almost double the 

number issued in the previous fiscal year. These cases included complaints brought by the Special 

Counsel, Special Counsel stay requests, a request to review an OPM regulation, and proposed actions 

against administrative law judges (including the proposed furloughs of administrative law judges). 

During Fiscal Year 1990, the Board continued its efforts to ensure well-reasoned decisions both 

in the regional offices and at headquarters. The standard orders used by the administrative judges in 

adjudicating cases were updated and rewritten in "plain English" as a part of the Board's continuing 

commitment to make its procedures more easily understood by persons who are not legal 

practitioners, and the Appeals Procedures Manual was expanded, updated, and reissued a The 

Judges' Handbook Training was provided to administrative judges at the National Judicial College 

and through in-house programs. Further quality review of the decisions of administrative judges 

were conducted under the strengthened quality review program launched in 1987. The Board also 

published its final regulations in the Federal Register under both 5 CFR Part 1201, covering practices 

and procedures for appellate and original jurisdiction cases, and 5 CFR Part 1209, covering the 

special provisions applicable to whistleblower appeals. 

At headquarters, the Board continued its concentration on issuing precedential decisions in 

cases involving "major issues." In addition to its groundbreaking interpretations of the Whistleblower 

Protection Act, the Board added significantly to the case law dealing with recovery of annuity 

overpayments, performance-based actions taken under 5 U.S.C. Chapter 43, discrimination against 

employees handicapped by alcohol or drug abuse, and various issues associated with settlements. 

Jessica L. Parks is sworn in by firmer Member Dennis M. Devaney. Ms. Parks' husband, 

Ed Swindell, holds the Bible. 

During the fiscal year, the Board issued seven reports of merit systems studies and OPM 

oversight reviews. They included an examination of why employees leave Federal Government service, 

a study of OPM efforts to improve recruitment for Government service, an analysis of OPM's job 

classification and qualifications 

systems, a report on the Senior 

Executive Service, and a report on 

what Federal employees think 

about "Working for America." The 

Board also joined with OPM to 

form the Joint Advisory Committee 

on Workforce Quality Assessment 

to review current methods for 

assessing the quality of the Federal 

work force and to make 

recommendations for 

improvements. 
The Board 

and staff 

conducted 

outreach activities 

in order to 

promote a greater 

understanding of 

the Board's 

practices and 

procedures, and of 

important issues 

in Federal 

personnel law, among the constituencies that deal with the agency. During the fiscal year, the Board 

members, senior headquarters staff, regional office directors, and administrative judges made 

numerous appearances at meetings, conferences, and training programs. The Board also 

continued its new series of public information publications with the issuance of "Questions & Answers 

About Appeals" and "Questions & Answers About Whistleblower Appeals." Both publications proved 

so popular that a second printing was ordered before the year ended. 

In the management area, a number of significant activities contributed to the Board's ability to 

perform its adjudicatory and studies functions more efficiently and effectively. Work began on the 

systems development phase of the new automated Case Management System, which is to be made 

operational in Fiscal Year 1991. The transition to an IBM-AT compatible personal computer 

environment throughout all Board offices was completed, and the headquarters minicomputer was 

upgraded. New automated systems were initiated for purchasing, property management, personnel 

security, time and attendance recording, and Board issuances, resulting in savings in both staff time 

and costs. 

Mary Detjen (center) of the Office of Regional Operations makes a point at the 1990 

Regional Directors Congerence 
Adjudication of Whistleblower Cases Under The 

Whistleblower Protection Act of 1989 

APPELLATE JURISDICTION CASES 

Provisions of the Whistleblower Protection Act 

During Fiscal Year 1990, the Board had its first opportunity to interpret provisions of the 

Whistleblower Protection Act of 1989. The new law made appealable many personnel actions that 

previously could not be appealed directly to the Board by an appellant, but could be brought only 

through the Office of Special Counsel. This individual right of action (IRA) appeal is an important new 

right for employees who believe that their agencies have taken 

personnel actions against them, o failed to take action, because of their whistleblowing activities. 

In addition, under the VVhisdeblow( Protection Act, a whistleblower appeal may be based on an agency 

action that has been proposed or threatened, as well as on an action that an agency has taken or 

failed to take. 

The Whistleblower Protection Act also permits an appellant to seek a stay of a personnel action 

allegedly based on whistleblowing, without the intervention of the Special Counsel. Under previous 

law, an employee could only seek a stay through the Special Counsel. If the Special Counsel did not 

prosecute the case on the employee's behalf, the employee had no further recourse, unless the action 

was one appealable to the Board under another statute or regulation. 

In addition, the new law significantly lowered the degree of proof needed by an employee to 

support a claim that an action was based on his or her whistleblowing. The legislative history makes 

it clear that the Congress intended this modification of existing law to make it easier for a 

whistleblower to gain protection from unwarranted agency action. Thus, the law now prohibits an 

agency action threatened, proposed, taken, or not taken "because of" an employee's protected activity, 

instead of "in reprisal for" such activity. The four-part burden of proof requirement appellants 

formerly had to meet to prove an affirmative defense of retaliation for whistleblowing has been vastly 

simplified. Under the new law, corrective action will be ordered if the employee shows that the 

protected activity was a "contributing factor" in the agency's decision to take the action. The agency 

can avoid this result only by showing "clear and convincing evidence" that it would have taken the 

same personnel action in the absence of the protected disclosure. 

The Board's Implementing Regulations 

During the first year of the Whistleblower Protection Act, the Board gained experience in 

working with the interim regulations it formulated when the Act first became law. Based on this 

practical experience, the Board revised both its existing appellate regulations, published at 5 CFR 

Part 1201, and its regulations specifically addressing appeals and stays under the Act, published at 5 

CFR Part 1209. Despite the relatively short period since enactment of the new law, the Board has 

provided a solid foundation of regulation to guide the parties in the cases that come before it under 

the Act The procedures established have proven not only workable, but well suited to the task of 

canying out congressional intent. 

During this fiscal year, the Board issued a series of precedential decisions defining many of the 

most important terms of the statute and setting forth the newly applicable burdens of proof and 

certain parameters for applying them. The construction of statutory terms developed through this 

case-by-case adjudication is now reflected in the Board's regulations and provides guidance to the 

parties to future appeals. 
Interpretation of the Savings Provision 

One of the first issues facing the Board in applying the Act was the determination of what cases 

should come under the provisions of the Act The question was: Did Congress intend to make the 

protections of the law applicable td all cases pending as of the effective date of the Act or to a more 

limited category of cases? In two lead decisions, the Board answered that question by finding that the 

Act was intended to apply only to those cases that arose after the July 9, 1989 effective date of the 

Act. 

Marshall v. VA, 

CH34438910593 (March 5, 1990) 

Citing the Act's savings provision and noting that the language was the same as in the savings 

provision of the Civil Service Reform Act, the Board found that the two savings provisions should be 

interpreted in the same manner. Accordingly, the Board found that, under the Whistleblower 

Protection Act, an action is "pending" as of the date the employee receives the notice c proposed 

administrative action. By its terms, the Act is inapplicably to administrative proceedings "pending" as of 

the effective date. The Board thus found that because the action taken against the appellant had 

been proposed prior to the Act's July 9, 1989 effective date, the Act did not apply even though the 

action was not effected until after that date. It further noted that this interpretation was consistent 

with the interpretation of the similar savings provision of the 1987 law extending Board appeal rights 

to certain Postal Service employees. This interpretation of the savings provision is reflected in the 

Board's regulations at 5 CFR 1201.191(b). 

Lundberg v. Navy, 

SE07528810298 (February 6, 1990) 

More than a year after the initial decision in the appellant's case became final, he filed a petition 

for review, arguing that he waited to file it until the Whistleblower Protection Act became effective 

because he had raised a defense of reprisal for whistleblowing and believed that the Act would have a 

substantial effect on his appeal. The Board found that the Act was inapplicable to the appeal, 

noting that under the Act's savings provision, because the agency issued its notice of 

proposed action to the appellant in 1985, the action against him was pending at that time and the 

Act, therefore, did not apply. The Board found that the appellant failed to exercise diligence or 

ordinary prudence. He awaited the passage of an Act without knowledge that it would pass, or 

that if it did, it would apply, and also failed to explain why he waited four months after passage of 

the Act to file his appeal. The petition for review was dismissed. 

Jurisdiction over Individual Right of Action Appeals 

Another issue of first impression addressed by the Board during the fiscal year concerned its 

jurisdiction over IRA cases. Under the Act, an appellant has the right to seek Board review of actions 

that are not otherwise appealable to the Board, if he or she asserts that the action was taken because 

of his or her whistleblowing activity, but only after the Special Counsel has had the opportunity to 

review the matter. In this decision, the Board adopted a principle of law generally applicable to its 

cases and ruled that an appellant must present a nonfrivolous allegation of jurisdiction under the Act 

before he or she is entitled to invoke the Board's process. 

Lozada v. EEOC, NY122190W0110, NY122190S0110 (May 25, 1990) 

The appellant filed an appeal in which she asserted that her supervisor had threatened to 

demote her in retaliation for prior appeals to the Board. She also requested a stay of the threatened 

action. The administrative judge dismissed the appeal and stay request for lack of jurisdiction, finding 

that the matter was not independently appealable to the Board and that the appellant did not have 

an "individual right of action" to challenge the threat because she had not shown that she had 

exhausted the procedures of the Office of Special Counsel. The Board agreed and found that the 

appellant had not raised a nonfrivolous allegation entitling her to a hearing on the jurisdictional 

issue. It noted that the appellant had not even alleged that she had sought corrective action 

from the Special Counsel, much less exhausted that procedure, which is a prerequisite to Board 

jurisdiction where the matter raised is not appealable directly to the Board. The appeal and stay 
request were dismissed. 

Issues Arising under the Stay Request Provisions 

The Board's early decisions under the Whistleblower Protection Act also addressed 

questions related to the new right of an individual whistleblower to request a stay of the agency 

action. In Gergick v. GSA, the Board granted the first stay request that properly came to it under 

the provisions of the Act. The case is significant in the development of the law on whistleblower 

protections under the Act because in it, the Board defined several terms used in the statute and 

set forth an analytical framework for reviewing stay requests. Among the issues facing the Board 

in Gergick were whether the appellant had been "threatened" with a personnel action so as to 

allow him to file a stay request; what he must introduce into the record to show a "substantial 

likelihood" that he would prevail on the merits of his claim; what he must introduce into the 

record to show that hisprotected disclosure was a "contributing factor" in the agency's action; 

and what type and degree of evidence the agency must introduce to counter the appellant's 

showings and prove by "clear and convincing evidence" that it would have taken the same action 

in the absence of the appellant's protected disclosure. The Board gave content to these and other 

terms in reaching its decision in this case. 

Gergick v. GSA, 

SL122190S0030 (February 28, 1990) 

After being denied relief by the Office of Special Counsel, the appellant filed an individual 

right of action appeal with the Board, contending that he had been threatened with removal 

when he was served with a "record of inquiry" in which the agency stated that it appeared that 

he had violated its standards of conduct and that this could result in disciplinary action against 

him. He asserted that this constituted retaliation for his whistleblowing activities and sought a 

stay of the threatened action. The administrative judge denied the stay request, finding no 

substantial likelihood that he would prevail or the merits of his appeal. The matter was certified 

to the Board as an interlocutory appeal. 

As a preliminary matter, the Board found that it would not consider newly submitted 

evidence, filed after the certification, because 5 CFR 1209.15 requires that evidence 

demonstrating entitlement to a stay be included in the request for the stay. Turning to the 

merits, the Board found that the agency's action amounted to a threat under the Whistleblower 

Protection Act of 1989. In so doing, the Board rejected the agency's argument that because it 

had not determined to remove the appellant or to take other action against him, it had not 

"threatened" him. Noting that the right to appeal a threat was a provision added by the Act, the 

Board stated that although the term had not been defined in the Act, the legislative history 

indicated that it should be given a fairly broad interpretation and that no actual proposal was 

necessary. The Board adopted the dictionary definition of "threaten" as consistent with 

congressional intent. The Board concluded that the record of inquiry in this case constituted a 

threat. As the Board explained, although the record of inquiry did not refer to a specific 

disciplinary action contemplated, it had been issued only after the agency compiled a 

substantial file on the appellant's actions, so the agency's statement that discipline could result 

indicated more than an insignificant likelihood of discipline. The Board noted, however, that not 

every record of inquiry or similar notice, standing alone, constitutes a threat. 

The Board further concluded that there was a substantial likelihood that the threatened 

action was a personnel action. Noting that the term "substantial likelihood" was not defined in 

the Whistleblower Protection Act, the Board broadly defined the term as including "that which is 

serious as opposed to that which is trivial." The Board also noted that a "personnel action" 

under the law continues to include "other disciplinary or corrective action." Although the agency 

did not state the specific discipline contemplated, the Board found the record of inquiry 

sufficiently threatened a personnel action so that the Board had jurisdiction over the case. 

Having made these two findings, the Board determined that the appellant had shown that the 

Board had jurisdiction over his stay request. 
With respect to the merits of the stay request, the Board noted that it must consider 

whether there is a substantial likelihood of success on the merits of an IRA appeal and whether 

the agency has shown that it would be caused "extreme hardship" should a stay be issued. To 

prevail, an appellant must show that a disclosure under 5 U.S.C. 2302(b)(8) was a "contributing 

factor" in the threatened personnel action. The Board noted the legislative history indicating that 

the "contributing factor" standard was specifically intended by the Congress to be a lower 

standard than the one that was previously applicable. The Board also noted the legislative 

history specifically stating that the "contributing factor" burden could be met if the official taking 

the action knew or had reason to know of the disclosure and acted in such a period of time that 

a reasonable person could conclude that it was a factor in the personnel action. 

In this case, the Board found that the appellant presented evidence that his whistleblowing 

was a contributing factor in the agency's action. In so doing, the Board noted that the record of 

inquiry included a specific reference to the appellant's complaints to the Special Counsel and the 

agency inspector general, so the official obviously knew about at least some of the disclosures. 

Moreover, the complaints, although not in the record, were consistently characterized as 

whistleblowing complaints, and the agency did not challenge that characterization. On these 

facts, the Board found that there was a substantial likelihood that the appellant could show that 

his whistleblowing complaints were a contributing factor in the threatened action. 

The Board then noted that under 5 U.S.C. 1221(E)(2), it cannot order a stay if the agency 

shows by clear and convincing evidence that it would have threatened to take the action even in 

the absence of the disclosure. The Board, relying on the legislative history, found that "clear and 

convincing evidence" is a higher standard than preponderant evidence. The Board also noted 

that the term has been defined to mean the degree of evidence that will produce "a firm belief or 

conviction as to the allegations sought to be established." 

Reviewing the record of inquiry, the Board found that it set forth four possible bases for 

discipline. The first was that the appellant continually refused to follow his supervisor's 

directions, but the directions he allegedly refused to follow were never identified. The second, 

that he made slanderous and defamatory comments about agency officials, although supported 

by proof that he made allegations of wrongdoing, was unsupported by any proof that those 

allegations were slanderous and defamatory. The third was his alleged infringement of his 

subordinates' right to privacy, but the Board found the only record evidence supportive of this 

basis to be "weak" Finally, the fourth basis was that the appellant's relationships with 

supervisors and subordinates were strained, but since there was no contention that the strain 

arose as a result of his improper acts, the Board found in it no basis for discipline. Given the 

vague allegations and the insufficiency of the evidence presented by the agency, as well as the 

proof that the appellant engaged in whistleblowing before the threat was made, the Board found 

that the agency had not presented clear and convincing proof that it would have taken the 

action in the absence of the disclosures. The Board, therefore, found a substantial likelihood 

that the appellant would prevail on the merits and concluded that he was entitled to a stay. 

In this regard, the Board emphasized that it was staying only the action threatened, not the 

investigation into the appropriateness of any such action. The stay was to remain in effect until 

a final decision on the IRA appeal was issued, or until the Board vacated or modified the stay. If 

a personnel action had already been effected on the basis of the record of inquiry, the Board 

ordered that it be cancelled retroactively. 

Last, the Board noted that shortly before this decision was issued, the administrative judge 

issued the initial decision on the IRA appeal, dismissing it as outside the Board's jurisdiction. 

The Board reopened that appeal on its own motion and allowed the parties to file briefs on it 

within 30 days. It noted that the issues addressed in that decision that were not raised in the 

stay request would be addressed in its final decision on the IRA appeal. 
Other Jurisdictional Issues 

During the fiscal year, the Board also issued two decisions addressing jurisdictional 

questions created when an agency cancels an appealed action. In Mulherin v. Air Force and 

Godfrey v. Air Force, the Board considered whether an agency's cancellation of an appealed 

action renders it moot and thereby removes the appeal from the Board's jurisdiction. In Godfrey, 

the Board also considered whether a generalized allegation of expected harm was sufficient to 

provide a basis for the assertion of Board jurisdiction and invoke the broader protections of the 

Act, or whether a greater degree of specificity was necessary. 

Mulherin v. Air Force, 

BN122189W0212, BN122189W0213 (May 24, 1990) 

The administrative judge dismissed the appellant's appeals from a written reprimand and a 

5-day suspension because she found that the agency had cancelled those actions and thereby 

divested the Board of jurisdiction over them under the Whistleblower Protection Act. The Board 

agreed. It found that the agency completely rescinded the actions and noted that in cases arising 

under its pre-Act jurisdiction, such rescission returns the employee to the status quo ante and 

divests Board jurisdiction. It found that the same result should obtain under the Act. Although 

the Act is remedial legislation and should be liberally construed, the Board found that nothing in 

its terms or legislative history supported a broader reading of the law. The appellant was not left 

in a worse position as a result of the cancellation than he would have been in if the appeals were 

adjudicated in his favor. A stay simply would suspend the personnel actions. Here, they were 

cancelled. Accordingly, the Board dismissed the appeals. 

Godfrey v. Air Force, 

BN122189W0214 (May 24, 1990) 

The administrative judge dismissed the appellant's appeal, under the Act, from his 

reprimand because the agency cancelled the action. For the reasons set forth in Mulherin, above, 

the Board agreed. 

The Board further held that the appellant's claim of ongoing harassment, retaliation, and 

threats provided no basis for assertion of jurisdiction. The appellant sought relief from perceived 

current and future reprisals, as well as a stay of any undesired personnel actions of any sort. 

The Board found that these arguments were so lacking in specificity that they neither prevented 

the appeal from the cancelled reprimand from being moot nor provided an additional basis for 

appeal. Although noting that its jurisdiction under the Act extends to threatened actions and 

that a broad interpretation of "threatened" was found proper in Gergick v. GSA, the Board found 

no indication in the law or legislative history that Congress intended to allow an IRA appeal 

under 5 U.S.C. 1221 "based solely on generalized assertions and fears unsupported by reference 

to any specific matter." To establish jurisdiction, the Board concluded that an appellant must 

cite a "threatened, proposed, taken, or not taken 'personnel action." As the Board explained, a 

personnel action includes a broad range of actions, but each is a concrete matter that can be 

taken or done by an agency, and reviewed and undone by the Board. Except for the cancelled 

reprimand, the Board found that the appellant had pointed to nothing that could be examined 

as evidence of a prohibited personnel practice. The appellant's only specific evidence was a 

reference to discipline meted out to others, which he contended would have been more severe if 

he had committed the same offense. Absent evidence that he was so disadvantaged, however, 

the Board found nothing in those generalized assertions that fell within the scope of its 

broadened jurisdiction under the Act. In these circumstances, the Board dismissed the appeal. 
ORIGINAL JURISDICTION CASES 

Provisions of the Whistleblower Protection Act 

The Whistleblower Protection Act also revised the procedures governing Special Counsel 

requests for stays of personnel actions. The procedures apply to Special Counsel requests for 

stays of actions allegedly based on any prohibited personnel practice, including whistleblowing. 

The Act allows the Special Counsel to request that the Board order a stay of a personnel action 

for 45 days if the Special Counsel determines that there are reasonable grounds to believe that 

the personnel action was taken or is to be taken as a result of a prohibited personnel practice. 

Under 5 U.S.C. 1214(b), any member of the Board shall order a stay unless the member 

determines that the stay would not be appropriate under the circumstances. Unless the stay 

request is denied, the stay must be granted within three working days of the Special Counsel's 

request. The Board may extend a stay for any period that it considers appropriate. Before a stay 

is extended, however, the agency involved must be allowed an opportunity to comment. 

Under the new law, the Board may terminate a stay at any time, except that it may not 

terminate a stay on its own motion or on the motion of the agency involved unless it first 

provides notice and an opportunity for comment by the Special Counsel and the affected 

individual. Further, the Board may not terminate a stay on the motion of the Special Counsel 

unless it first provides notice and an opportunity for comment by the affected individual. 

Standards Applicable to Special Counsel Stay Requests 

One of the initial issues raised by the stay provision of the Whistleblower Protection Act was 

the standard to be applied in determining whether to grant a Special Counsel stay request. In 

the first decision under the new law, the Vice Chairman determined that a stay would be 

granted where the facts presented by the Special Counsel supported a reasonable belief that a 

prohibited personnel practice had occurred and that it would not be inappropriate to grant the 

stay. 

Special Counsel v. Federal Emergency Management Agency, 

90 FMSR 5124, 43 M.S.P.R. 527 (1990) 

The Office of Special Counsel sought a 45-day stay of the agency's proposed 10-day 

suspension of Leo Bosner, arguing that it had reasonable grounds to believe that the suspension 

was ordered in reprisal for Bosner's protected activity. In her decision on the stay request, the 

Vice Chairman noted that the Special Counsel was then in the process of seeking corrective 

action on Bosner's behalf with respect to a proposed 5-day suspension in July 1989. Between 

July and the date on which the 10-day suspension was proposed, Bosner continued his contacts 

and disclosures. Further, he denied the insubordination on which the suspension was based. 

The Vice Chairman found that the provision for an initial stay upon motion by the Special 

Counsel under the Whistleblower Protection Act was virtually identical to the one that was in 

effect under the Civil Service Reform Act. Further, the legislative history of the Whistle-blower 

Protection Act made it clear that Congress intended that the initial stay not be difficult to obtain. 

She concluded, therefore, that the same standard as was previously applied would continue to 

apply. Finding that the facts presented by the Special Counsel supported a reasonable belief 

that a prohibited personnel practice had occurred, she concluded that it "would not be 

inappropriate" to grant the stay while the Special Counsel investigated the matter. Thus, she 

ordered the stay and directed the agency to allow Bosner to continue to work in his position 

during its pendency. 
Extensions of Stays Granted the Special Counsel 

During the fiscal year, the Board also issued decisions clarifying its discretion to extend 

stays beyond the initial 45-day period. In deciding requests for extensions of stays, the Board 

concluded that it is not required to concur in the Special Counsel's determination that there are 

reasonable grounds to believe that a prohibited personnel practice ha occurred, and it would not 

automatically extend stays. In exercising its discretion, however, the Board would view the 

record in the light most favorable to the Special Counsel and grant the request if the Special 

Counsel's prohibited personnel practice claim were not clearly unreasonable. 

Special Counsel v. Federal Emergency Management Agency, 

90 FMSR 5253, 44 M.S.P.R. 544 (1990) 

On request by the Special Counsel for a 90-day extension of the initial stay, the Board 

granted an extension for 45 days. Under 5 U.S.C. 1214(b)(1)(B), the Board "may" extend a stay 

issued by a single member "for any period which the Board considers appropriate." This 

discretionary grant of authority differs from the standard under the predecessor statute in that 

the Board is no longer required to concur in the Special Counsel's determination that there are 

reasonable grounds to believe that a prohibited personnel practice has occurred. The Board 

concluded that under this newly acquired authority, stay extensions would not be automatic. 

The Board also set guidelines for the exercise of its discretion. The Board ruled that it would 

view the record in the light most favorable to the Special Counsel and would grant the extension 

request if the Special Counsel's prohibited personnel practice claim were not clearly 

unreasonable. 

In this case, the Board found that the agency had not demonstrated that the Special 

Counsel's claim that a prohibited personnel practice occurred was clearly unreasonable. The 

Board found, however, that the 90-day extension requested by the Special Counsel was too long. 

Citing the legislative history as evidence that the Congress did not intend stays to be extended 

for prolonged periods of time, the Board found that an extension of 45 days was appropriate. 

Special Counsel v. Federal Emergency Management Agency, 

HQ12089010012, 

(July 31, 1990) 

The Board previously granted an initial 45-day stay of the 10-day suspension of Leo Bosner, 

as well as two subsequent extensions. In this action, the Special Counsel requested an indefinite 

extension of the stay because, she asserted, her investigation revealed evidence that the 

suspension was taken in retaliation for Mr. Bosner's protected activity. The request was based 

on 5 U.S.C. 1214(b)(2)(A), under which the Special Counsel provided the agency with the results 

of the investigation, and her statement that if the agency did not take action to correct the 

prohibited personnel practice in 30 days, she would seek corrective action before the Board. 

The Board denied a further extension because the agency stated that it intended to take no 

action against Bosner until this matter was concluded. The Board found, therefore, that the 

extension was not necessary to protect Bosner and noted that Congress did not intend stays to 

be extended for prolonged periods. In this regard, however, it stated that if the agency reneged 

on its commitment, the Special Counsel could renew her request 

Other Decisions on Special Counsel Stay Requests 

During Fiscal Year 1990, the Special Counsel filed nine initial requests for stays with the 

Board, all of which were filed on behalf of whistleblowers. The Board applied the standards set 

forth in the decisions in Special Counsel v. Federal Emergency Management Agency in ruling on 

these stay requests. The number of stay requests filed by the Special Counsel was substantially 

greater than in the years prior to enactment of the Whistleblower Protection Act During Fiscal 

Year 1989, for example, the Special Counsel filed only two stay requests with the Board. 
Special Counsel Disciplinary Action 

With respect to the definition of actions allegedly based on whistleblowing and the degree of 

proof required in a whistleblower case, the Whistleblower Protection Act made the same 

provisions applicable in Special Counsel cases as apply in appeals by individual whistleblowers. 

Fiscal Year 1990 saw the first complaint for disciplinary action filed by the Special Counsel 

under the provisions of the Act. That proceeding, Special Counsel v. Larry L. Hathaway, was the 

subject of a recommended decision by the Administrative Law Judge on August 9, 1990, finding 

that one of the four counts charged should be sustained. At the end of the fiscal year, the case 

was pending before the Board. The proceeding will afford the Board its first opportunity to 

analyze 5 U.S.C. 2302(b)(8), as revised by the Whistleblower Protection Act, in the context of a 

Special Counsel disciplinary action. 

CONCLUSION 

As these decisions show, during the Board's first year of practice under the Whistleblower 

Protection Act, the Board addressed new causes of action and major substantive issues in both 

appellate and original jurisdiction cases. These decisions defining important stautory terms and 

establishing the framework for bringing actions under the new law effectuate the intent of the 

Congress to protect whistleblowers from unwarranted agency action while allowing Federal 

agencies to operate effectively. For example, although a whistleblower may be granted a stay and 

an IRA appeal may be won on the basis of a lesser burden of proof, as evidenced by Gergick, 

nonetheless the Board has imposed reasonable limits on the process by assuring that frivolous 

allegations and those with no asserted foundation in fact do not call forth the full protections of 

the Act reserved for genuine whistleblowers. 
Adjudication: Appellate Jurisdiction 

JURISDICTION

APPEALABLE ACTIONS 

Under the CSRA, most Federal employees are entitled to appeal to the Board certain personnel 

actions taken by Federal agencies. Certain other actions are appealable under OPM regulations. 

Appealable actions 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 actions, denials of restoration-to-duty or 

reemployment nights, and OPM determinations in employment suitability and retirement matters. 

Since the Whistleblower Protection Act became effective on July 9, 1989, additional personnel 

actions may result in an appeal to the Board under certain circumstances. Included are actions that 

may be the subject of a prohibited personnel practice complaint to the Special Counsel, such as 

appointments, promotions, details, transfers, reassignments, and decisions concerning pay, benefits, 

awards, education, or training. Such an action may be appealed to the Board only if the appellant 

alleges that the action was taken because of his or her 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. 

In the past fiscal year, the Ethics Reform Act of 1989, which requires that members of the Senior 

Executive Service be recertified every three years beginning in 1991, also broadened the Board's 

jurisdiction. That law provides that senior executives who are denied recertification have the right to 

appeal the denial to the Board. 

ELIGIBLE EMPLOYEES 

The employees and others (e.g., applicants for employment, annuitants in retirement cases) who 

may appeal specific actions to the Board 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. 

Since the CSRA became effective, employees in the competitive service and preference-eligible 

employees in the excepted service have had the right to appeal adverse actions to the Board. In 1987, 

nonpreference-eligible supervisors and managers in the Postal Service gained Board appeal rights for 

adverse actions. 

In the last fiscal year, the Civil Service Due Process Amendments, effective August 17, 1990, 

extended the right to appeal both adverse actions and performance-based actions to certain 

employees in the excepted service. The legislation extended appeal rights to excepted service 

employees—including attorneys, scientists, teachers, clericals, laborers, and others hired noncompetitively—who previously could not appeal to the Board unless they were preference-eligibles. To 

be eligible to appeal, excepted service employees must have completed two years current continuous 

service in an Executive agency. Employees in certain agencies, including the Postal Service and the 

intelligence agencies, were excluded from the coverage of this new law. The Office of Personnel 

Management estimates that approximately 100,000 additional excepted service employees gained 

appeal rights under the law. 
REGIONAL OFFICES 

 APPELLATE PROCEDURES 

Appeals to the Board must be filed in writing with the Board regional office having geographic 

jurisdiction within 20 days of the effective date of the action. Where the notice of action does not set 

an effective date, the appeal must be filed within 25 days of the date of the notice. In the case of 

whistle-blower appeals, where the appellant has first complained to the Special Counsel, the 

Whistle-blower Protection Act provides that the appellant may appeal directly to 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. 

Appeals to the Board must be filed in writing with the Board regional office having geographic 

jurisdiction within 20 days of the effective date of the action. Where the notice of action does not set 

an effective date, the appeal must be filed within 25 days of the date of the notice. In the case of 

whistle-blower appeals, where the appellant has first complained to the Special Counsel, the 

Whistle-blower Protection Act provides that the appellant may appeal directly to 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. 

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 also filed in writing with the Boar( regional office having geographic jurisdiction. By 

law, stay requests must be decided within 10 days of receipt of the request. 

After an appeal has been received, the regional office issues an order acknowledging receipt of the 

appeal and raising any questions of timeliness or jurisdiction. The appeal is then 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 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 also filed in writing with the Boar( regional office having geographic jurisdiction. By 

law, stay requests must be decided within 10 days of receipt of the request. 

After an appeal has been received, the regional office issues an order acknowledging receipt of the 

appeal and raising any questions of timeliness or jurisdiction. The appeal is then 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. 

Regional Directors (left to right) Carl Berkenwald (Seattle), William Carroll (Boston), 

and Earl Witten (St. Louis) at the 1990 Regional Directors 

Conference

Once jurisdiction and timeliness 

have been established, the appellant 

has a right to a hearing on the 

merits. During a prehearing 

conference, issues are defined and 

narrowed, stipulations to 

undisputed facts are obtained, and 

bases for settlement are discussed. 

If a hearing is held, each party has 

the opportunity to call 

Once jurisdiction and timeliness 

have been established, the appellant 

has a right to a hearing on the 

merits. During a prehearing 

conference, issues are defined and 

narrowed, stipulations to 

undisputed facts are obtained, and 

bases for settlement are 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 

are open to the public and fully 

recorded by a court reporter, with 

copies of the record available to the 

parties. Once the record is closed, 

an initial decision is issued by the 

administrative judge. 

Certain procedural changes 

were made by the Board's final regulations under 5 CFR Part 1201 and 5 CFR Part 1209, 

published during the last fiscal year. Appellants may now file appeals by facsimile, as well as by 

mail or personal delivery. The previous requirement that an appeal be signed by both the 

appellant and the appellant's designated representative, if any, has been replaced by a requirement for signature by the appellan or the representative. An original signature is no longer 

required, in recognition of the fact that only a copy of a signature can be transmitted by 

facsimile. The same filing requirements apply to stay requests in whistleblower appeals and to 

petitions for review of initia decisions. 

The Board's established policy calls for the administrative judge to issue an initial decision on 

an appeal within 120 days from the date the appeal was filed. In Fiscal Year 1990, 99.4 percent of 

all initial appeals were decided within 120 days. The regional offices averaged 72 days to issue 

these decisions. 
DECISIONS ISSUED IN FISCAL YEAR 1990 

In Fiscal Year 1990, administrative judges in the Board's regional offices issued 6,932 decisions 

on appeals. This number includes 252 decisions on whistle-blower appeals-89 on IRA appeals and 

163 on appeals of otherwise appealable actions. The administrative judges also issued 75 decisions 

on stay requests and810 addendum case decisions, i.e., requests for attorney fees, remands. and 

compliance (or enforcement) cases. 

Fifty-one percent of the initial appeals were adverse action cases. The remaining cases involved 

retirement-related decisions, terminations of probationary employees, performance actions, 

reductions-in-force, and other appealable actions. The following chart shows the breakdown of the 

number of initial appeals decidedby the type of action appealed. 

There were 1,969 settlements of initial appeals, or 49 percent of the appeals that were not 

dismissed for lack of jurisdiction or timeliness and closed during the fiscal year. The Board continues 

to emphasize alternative dispute resolution procedures because, properly used, they promote 

equitable settlements that protect the rights of the parties while providing the single most costeffective means of dispute resolution. Cost savings are achieved principally in salaries, travel 

expenses, and court reporting fees.

INITIAL APPEALS BY TYPE OF 

ACTION 

Total number of initial appeals: 6,932 

Percentages do not total 100% due to rounding. 
The Board's administrative judges use the full range of alternative dispute resolution 

techniques, adapting the special characteristics of different mechanisms to particular cases. For 

example, the administrative judges facilitate exchanges between the parties, suggesting possible 

solutions and helping the parties reach a voluntary agreement They make use of the prehearing 

conference stage of the appeals process to gain an ongoing involvement of the parties, thus 

facilitating settlement Because these processes are voluntary, the parties surrender no rights if 

an agreement is not reached, and the case proceeds to adjudication. 

These techniques have resulted in increasingly higher settlement rates over the past several 

years. The chart below shows settlement rates for the past five fiscal years. 

During this fiscal year, the Senate Subcommittee on Oversight of Government Management, 

Committee on Governmental Affairs, considered legislation to promote the use by Federal 

agencies of alternative dispute resolution procedures. The Board provided information to the 

subcommittee about the success of its model settlement initiative and also testified before the 

subcommittee about its program. The Board's sucessful use of alternative dispute resolution 

procedures was noted on the House floor in the debate over legislation designed to 

encourage use of such procedures.

SETTLEMENT RATES

Percent of initial appeals not dismissed 

for lack of jurisdiction or timeliness, 

(addendum cases not included). 
Of the 2,010 appeals that were adjudicated, 1,542, or 77 percent, affirmed the agency action. 

Decisions in the remaining appeals that were adjudicated included reversals, which overturned 

the agency action, and mitigations, which reduced or modified the penalty imposed by the 

agency. 

The following chart shows the breakdown by disposition of all appeals decided in Fiscal Year 

1990. 

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. An exception to interim relief is also available 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. 

Of the 75 decisions issued on stay requests in Fiscal Year 1990, 8 granted the requested 

stay. The remaining decisions either dismissed or denied the stay request. More than a third of 

the stay requests were dismissed because they were filed prematurely, that is, before the 

appellant was eligible to file an appeal. (Of the 75 decisions, 1 was issued on a stay request where 

the action was not allegedly based on whistleblowing; the request was dismissed for lack of 

jurisdiction.) 

DISPOSITION OF INITIAL 

APPEALS 

Total number of initial appeals: 6,932 

Percentages do not equal 100% due to rounding. 
In addition to the decisions on 

initial appeals and stay requests 

issued in Fiscal Year 1990, the 

regional offices issued decisions in 

840 addendum cases. These 

included 242 requests for 

attorney fees, 402 enforcement 

cases alleging that there was not 

full compliance with a Board 

decision, and 196 cases remanded to 

the regional offices. The settlement rate 

for addendum cases was 42 percent. 

SIGNIFICANT ACTIVITIES 

During Fiscal Year 1990, in a 

continuing effort to maintain 

uniform practices and 

procedures, the Appeals 

Procedures Manual used in the 

Board's regional offices was 

expanded, updated, and retitled 

The Judges' Handbook. In 

August 1990, the standard 

orders used by the 

administrative judges in the 

adjudication of cases were 

updated and rewritten in "plain 

English" to assist pro se 

appellants. A procedure was 

established for proposing and 

implementing revisions to the 

standard orders on a regular 

basis. In addition, the regional 

offices were given the authority to 

modify a standard order when it 

is appropriate under the 

circumstances of a particular 

case. 

Regional Directors R.J. Payne (Atlanta) and Paula Latshaw (Dallas) at the 1990 Regional 

Directors Conference 

Kathleen McGraw, Administrative judge, in the hearing roam of the Atlanta Regional Office The second round of quality 

reviews of the decisions of 

administrative judges under the 

quality review program established in 1987 was begun during Fiscal Year 1990. Quality reviews 

were conducted of the administrative judges in the Denver, San Francisco, and Seattle regional 

offices. The reviews showed that the judges continue to exhibit high quality in their adjudication of 

cases. 

Many of the administrative judges and members of the staff of the Office of Regional 

Operations attended courses at the National Judicial College and conferences such as those 

sponsored by the U.S. Court of Appeals for the Federal Circuit and the Equal Employment 

Opportunity Commission. The regional offices conducted in-house training programs for the 

administrative judges and provided on-the-job training for several new judges. 
Under the Whistleblower Protection Act of 1989, the Board received authority to delegate subpoena 

and discovery authority to any employee of the Board. This authority was previously limited to the 

Board members and the Administrative Law Judge. In Fiscal Year 1990, the Board delegated this 

authority to the regional directors and permitted redelegation to individual administrative judges. 

This change has improved the adjudicatory process by eliminating the need for administrative 

judges to obtain rulings on subpoena and discovery motions from the Board members or the 

Administrative Law Judge. 

In an effort to assist pro se appellants, the Washington Regional Office participated in a program 

with the legal clinics of three area law schools to make free representation available to Federal 

employees. The office provides each unrepresented appellant with a listing of the legal clinics and 

freelawyer-referral services, but does not make any recommendations with respect to whether the 

appel lant should secure representation or which representative to select. The office also provides 

training i MSPB regulations and procedure to the law students in the progran Approximately 25 

appellants obtained representation through the program in the past two years The participating 

clinics are those of American University, Howard University, and Columbus Community Legal 

Services. 

PLANNING FOR FISCAL YEAR 1991

Charles Barenthaler of the Office of Region, 

Operations 

Because of the Federal budge crisis at the end of the fiscal 

year, Federal agencies issued notices of possible furloughs to 

more than one million employees. Based on its statistical a

of appeal rates, the Board anticipated that 120,000 appeals 

might be filed if these furloughs were effected. The Board's O

of Regional Operations led a task force in planning for a potential 

15-fold increase in the number of annual appeals. The task force 

developed a plan for the initial processing of the furlough 

appeals, including a method for counting, organizing, and 

monitoring the appeals and for reporting on them to 

headquarters. The task force also worked to develop proposed 

methods to expedite adjudication of the appeals should 

governmentwide furloughs actually be effected. 

nalysis 

ffice 

HEADQUARTERS 

PROCEDURES FOR PETITONS FOR REVIEW

An administrative judge's 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. 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.

William H. DuRoss, III

Director, Office of Appeals Counsel
The Board's decision on a petition for review constitutes final administrative action. Further 

appeal may then be available in the United States Court of Appeals for the Federal Circuit or, in cases 

involving allegations of certain types of discrimination, with a U.S. District Court or the Equal 

Employment Opportunity Commission (EEOC). The Director of the Office of Personnel 

Management may intervene or petition the full Board for reconsideration of a final decision and may 

also seek judicial review of a Board decision involving the interpretation of a civil service law, rule, or 

regulation affecting personnel management where the Board decision will have a substantial impact on 

a civil service law, rule, regulation, or policy. 

DECISIONS ISSUED IN FISCAL YEAR 1990 

The Board issued decisions on 1,443 petitions for review in Fiscal Year 1990, of which 1,310 

were filed to review initial decisions on appeals and the remaining 133 

were for review of decisions in addendum cases (attorney fees, 

enforcement, and remands). The Board's decisions on 1,173 of the 

1,310 petitions for review of an initial decision (90 percent) left the 

initial decision unchanged. During Fiscal Year 1990, 97 percent 

of final Board decisions reviewed by the United States Court of 

Appeals for the Federal Circuit were unchanged. 

The Board issued decisions on 1,443 petitions for review in Fiscal Year 1990, of which 1,310 

were filed to review initial decisions on appeals and the remaining 133 

were for review of decisions in addendum cases (attorney fees, 

enforcement, and remands). The Board's decisions on 1,173 of the 

1,310 petitions for review of an initial decision (90 percent) left the 

initial decision unchanged. During Fiscal Year 1990, 97 percent 

of final Board decisions reviewed by the United States Court of 

Appeals for the Federal Circuit were unchanged. 

An administrative judge's ruling on a stay request in a 

whistleblower appeal may be certified to the Board as an interlocutory 

appeal. In Fiscal Year 1990, the Board issued decisions on five such 

interlocutory appeals, granting two and denying three. 

ISSUES ADDRESSED IN FISCAL YEAR 1990 

The Board has continued to ensure the quality of decisions 

through its issuance of detailed Opinions and Orders. These 

precedential decisions can be relied on by the administrative judges in 

subsequent appeals, and also serve to inform and guide Federal agencies, their employees, and the 

representatives of both, in taking and challenging appealable actions. The Board also concentrates on 

the resolution of cases involving "major issues," those that occur with some frequency in employee 

appeals. Their resolution in one or two appeals, therefore, allows for resolution in many other cases. 

The Board has continued to ensure the quality of decisions 

through its issuance of detailed Opinions and Orders. These 

precedential decisions can be relied on by the administrative judges in 

subsequent appeals, and also serve to inform and guide Federal agencies, their employees, and the 

representatives of both, in taking and challenging appealable actions. The Board also concentrates on 

the resolution of cases involving "major issues," those that occur with some frequency in employee 

appeals. Their resolution in one or two appeals, therefore, allows for resolution in many other cases. 

ISSUES ADDRESSED IN FISCAL YEAR 1990 

Robert E. Taylor Clerk of the Board 

During Fiscal Year 1990, the Board set important precedent in several areas of concern to Federal 

employees and retirees. In a comprehensive series of five cases, the Board thoroughly examined issues 

related to annuity overpayments. When a Federal annuitant is overpaid by the Office of Personnel 

Management, its regulations provide that recovery of the overpayment may be waived when collection 

of the amount would be "against equity and good conscience." In these lead decisions, the Board 

explored that concept and determined when it would find that waiver was appropriate because of 

financial hardship, detrimental reliance, and unconscionability. 

During Fiscal Year 1990, the Board set important precedent in several areas of concern to Federal 

employees and retirees. In a comprehensive series of five cases, the Board thoroughly examined issues 

related to annuity overpayments. When a Federal annuitant is overpaid by the Office of Personnel 

Management, its regulations provide that recovery of the overpayment may be waived when collection 

of the amount would be "against equity and good conscience." In these lead decisions, the Board 

explored that concept and determined when it would find that waiver was appropriate because of 

financial hardship, detrimental reliance, and unconscionability. 

The Board added significantly to the body of law already 

developed with respect to performance-based actions taken under 5 

U.S.C. Chapter 43. In two cases issued this fiscal year, it 

reconsidered the requirements of the law and determined the extent 

to which an agency could take into account an employee's performance both before and after his statutory opportunity to demonstrate acceptable performance.

The Board added significantly to the body of law already 

developed with respect to performance-based actions taken under 5 

U.S.C. Chapter 43. In two cases issued this fiscal year, it 

reconsidered the requirements of the law and determined the extent 

to which an agency could take into account an employee's performance both before and after his statutory opportunity to demonstrate acceptable performance.

Stephanie Conley, Legal Assistant to 

Vice Chairman Johnson
The Board addressed several collateral issues related to settlements. It determined an 

appellant's right to a hearing in connection with his or her petition for attorney fees where the 

underlying merits issues had not been decided because of a settlement. It also addressed the effect 

of an undecided allegation of discrimination on an appellant's entitlement to attorney fees. In other 

cases, the Board addressed the 

extent of its jurisdiction over 

appeals from an action taken by 

the appellant as a result of a 

settlement agreement entered in 

an earlier action, its authority to 

fashion a remedy for a breach of 

an agreement, and the propriety 

of long-term administrative leave 

as a provision of a settlement 

agreement. 

The mixed case area—cases 

involving both a matter 

appealable to the Board and an 

issue of discrimination—was also 

clarified in many respects this 

year. The Board dealt with a 

number of difficult issues such as 

the proper remedy for a violation of the nondiscrimination laws concerning alcohol and drug 

abusers, the degree of accommodation required for such persons, and the extent to which a physical 

malady must affect an employee's employability before it is considered a "handicap" that may entitle 

him to accommodation. 

Mary Ann Kane, Special Advisor (left), Calvin M Morrow, Attorney, and Linda L. Bowdoin, 

Executive Assistant, of Member Parks' staff 

The Board also held a Sunshine Act meeting on a request for 

reconsideration of the removal of 116 air traffic controllers from the 

Chicago area who were removed for participation in the 1981 air 

traffic controller strike. 

HEADQUARTERS APPELLATE CASES 

Three types of appellate jurisdiction cases are processed 

originally at Board headquarters,rather than in a regional office. 

These are appeals from MSPB employees, appeals involving 

classified national security information, and petitions to review 

an arbitrator's award. In the case of appeals from MSPB 

employees and appeals involving classified security information, 

the Board's Administrative Law Judge hears the case and issues 

the initial decision. Unless a petition for review is filed and the 

Board considers the case, the decision of the Administrative Law 

Judge becomes the final decision. Decisions in arbitration cases 

are issued by the Board. 

This year marked the implementation of the Board policy that all 

cases involving classified information relating to national security, whether appellate or original 

jurisdiction, would be adjudicated by the Administrative Law Judge. One such appeal was 

adjudicated in Fiscal Year 1990. All rules and regulations governing the handling of classified 

materials were observed scrupulously, and even the oral hearing was conducted in a secured 

setting. In this case, the appellant was removed for unsatisfactory performance. The initial 

decision sustained the agency action. Among the security problems confronted in adjudicating the matter was the fact that the appellant's performance plan—the underlying basis of the 

action—was classified.

Emilie Schoenberg, Confidential 

Assistant, and Danny R. Smith, 
One MSPB employee appeal was decided during the fiscal year. This case, however, was assigned 

to an administrative law judge at the National Labor Relations Board for adjudication, and a 

settlement was reached. The Board issued decisions in eight cases involving review of arbitrators' 

awards. 

SIGNIFICANT ACTIVITIES 

To further improve adjudicatory processes, headquarters attorneys conducted another series of 

visits to the regional offices to share current and developing trends in Board law and practice with 

administrative judges, and to receive the judges' input into how those practices and procedures work 

when applied in "real-world" situations. 

During this fiscal year, the Board completely revised the glossary of its most significant decisions 

to make it a more comprehensive and up-to-date compilation of Board law. The revised glossary also 

includes other items to simplify the task of Board attorneys, both in the regional offices and at 

headquarters, in writing decisions and to make fuller use of the Board's computer and word 

processing equipment. 

SPECIAL PANEL 

The Special Panel was established by the Civil Service Reform Act of 1978 as a separate entity 

to resolve disputes between the Merit Systems Protection Board and the Equal Employment 

Opportunity Commission in "mixed cases." These are cases that involve both a matter appealable to 

the Board and an issue of discrimination. The Special Panel consists of one Board Member 

designated by the MSPB Chairman, one EEOC Commissioner designated by the EEOC Chairman, 

and a third individual appointed by the President to serve as Chairman of the Special Panel. 

President Reagan appointed Barbara Mahone as Chairman of the Special Panel on October 18, 

1985. During Fiscal Year 1990, the Special Panel dismissed one case for failure to prosecute. 

(See Appendix A for summaries of significant Board decisions issued on appeals during Fiscal Year 1990) 
STEPS IN PROCESSING INITIAL APPEALS AND PETITIONS FOR REVIEW 

Filing of Appeal by Appellant Within 20 days of effective date of agency personnel 

action

MSPB Regional Office 

Appeal received

Appeal acknowledged

Appeal entered in Case Tracking System Case file requested from agency

Appeal assigned to administrative judge

(If appropriate, show cause order issued re: jurisdiction 

or timeliness)

1-3 days from receipt of appeal

Agency response and case file received 

Discovery begins

Prehearing conference scheduled

Notice of hearing issued

(If show cause order issued, response received) 

10-25 days from receipt of appeal

Prehearing motions filed and rulings issued

Attempts to achieve settlement (various methods) Discovery completed

Prehearing conference held (more than one may be 

held to facilitate settlement)

Witnesses identified

If no hearing, close of record set 

10-60 days from receipt of appeal

Hearing held

Record closed 60-75 days from receipt of appeal

Initial Decision issued Within 120 days from receipt of appeal

Filing of Petition for Review (PFR) by Appellant or 

Agency (OPM or OSC as intervenor Within 35 days of date of Initial Decision 

Board Headquarters 

PFR received

PFR acknowledged

PFR entered in Case Tracking System Case file requested from Regional Office

(If appropriate, show cause order issued 

re: jurisdiction, timeliness, or deficiency of PFR) 

1-3 days from receipt of PFR

Response to PFR filed or

Cross-PFR filed

Case file received

(If show cause order issued, response filed)

Within 25 days of service of PFR

If Cross-PFR received Additional 25 days from date of service of Cross-PFR

If Extension of Time request received and granted Additional time specified in Order granting EOTl 

Final Decision issued (Board time standard for issuance of Final Decisions is

110

days)

Filing of appeal with U.S. Court of Appeals for the 

Federal Circuit(or in discrimination cases, with the 

appropriate U.S. District Court or EEOC)

Within 30 days of the party’s receipt of Board Final 

Decision 
Adjudication: Original Jurisdiction 

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 (SES). 

ORIGINAL JURISDICTION PROCEDURES 

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 is also entitled to a hearing. These cases 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.) 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 whatever action may be appropriate. 

Addendum cases (requests for attorney fees, requests for compliance, and remands) arising out of 

Board decisions in original jurisdiction cases are also included in the Board's original jurisdiction 

caseload. 

Appeals from Board decisions in Special Counsel cases (other than Hatch Act cases involving state 

or local employees in federally funded positions) and other original jurisdiction cases are filed with the 

United States Court of Appeals for the Federal Circuit. In Hatch Act cases involving state or local 

employees in federally funded positions, the employee may appeal the Board's decision to the 

appropriate U.S. district court. 
DECISIONS ISSUED IN FISCAL YEAR 1990 

During Fiscal Year 1990, the Board issued 43 decisions in original jurisdiction cases. Of these, 4 

were decisions in proposed actions against administrative law judges, 10 were decisions in 

actions filed by the Special Counsel alleging Hatch Act violations, 5 were decisions in other 

Special Counsel disciplinary actions, 23 were decisions on Special Counsel stay requests (including 

requests for extensions of stays granted), and 1 was a decision on a request for review of an OPM 

regulation. Two original jurisdiction addendum cases were decided in Fiscal Year 1990. 

In most years since the Board commenced operations in 1979, it has issued about a dozen decisions in original 

jurisdiction cases. Frequently, these cases involve more than one respondent For example, one Hatch 

Act case decided in Fiscal Year 1990 involved 8 respondents, while in Fiscal Year 1989, 10 proposed 

actions against administrative law judges were consolidated. An increase in the number of administrative law judge cases was the principal reason why the number of Board decisions in original 

jurisdiction cases increased to 21 in Fiscal Year 1989. The increase in Fiscal Year 1990 was primarily 

the result of a substantial increase in the number of Special Counsel stay requests. 

ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES 

Fiscal Year 1991 will see a dramatic increase in the number of respondents affected by the 

Board's original jurisdiction decisions as a result of agencies' proposed furloughs of administrative law 

judges to meet the requirements of a sequester that was anticipated to begin October 1, 1990. Unlike 

other Federal employees, administrative law judges may not be furloughed for 30 days or less until they 

have first been given the opportunity for a hearing and a decision by the Board. The agency proposing 

to furlough its administrative law judges first files a complaint with the Board. The Board notifies the 

affected administrative law judges, who may then respond to the complaint and request a hearing. The 

Board's Administrative Law Judge issues a recommended decision—after a hearing, if one is 

requested—and the parties may then file exceptions to the recommended decision prior to issuance of 

a final decision by the Board. A furlough may be authorized upon a showing of good cause. 

In the final weeks of Fiscal Year 1990, the Board received 23 complaints from agencies proposing to 

furlough a total of 1,053 administrative law judges. Since the furloughs would need to be effected soon 

after October 1 in the event of a sequester, it was necessary for the Board to adopt expedited 

procedures to complete the processing of these cases. The time limits for the administrative law judges 

to respond to the complaint and for the parties to file exceptions to the recommended decision were 

much shorter than under the Board's normal procedures for such cases. Because the Board's 

Administrative Law Judge could not be expected to adjudicate all of the cases in the time involved, the 

Board hired several retired administrative law judges to assist in adjudicating the cases. 

In September 1990, 5 hearings were held, and 20 recommended decisions were issued in 

these cases. By the end of the fiscal year, one final Board decision affecting nine administrative law 

judges had been issued. 

In addition to its final decision in one administrative law judge furlough case, the Board issued 

three decisions in other cases involving actions against administrative law judges in Fiscal Year 1990. 

In one of these cases,involving three administrative law judges, the respondents sought to invoke 

Board jurisdiction by alleging that various management initiatives constructively penalized them by 

interfering with their judicial independence. The Board found that the management initiatives in no 

way impacted on the decisional independence of the judges, and, therefore, dismissed the complaints 

for lack of jurisdiction. The other two administrative law judge cases were settled. 

Although administrative law judge disciplinary actions are uncommon, they are significant in the 

overall civil service scheme when they occur. Therefore, during Fiscal Year 1990, the office of the 

Administrative Law Judge prepared a digest of statutes, regulations, and cases dealing with 

disciplinary actions against administrative law judges. The digest is intended as a research tool in the 

adjudication of such cases. 
HATCH ACT CASES 

Edward j. Reidy 

Administrative Law judgee 

Of the 10 Hatch Act decisions issued in Fiscal Year 1990, all 

but 1 involved state or local government employees in federally 

funded positions. Five employees were alleged to have violated the 

Hatch Act by becoming candidates for elective office in partisan 

elections. 

In the most extensive Hatch Act case decided, eight individual 

respondents were charged with violating the provisions of the Hatch 

Act that apply to state and local government employees in federally 

funded positions. The Board found that three of the respondents 

violated the Hatch Act's prohibitions against coercing other 

employees to make political contributions, and one of the 

respondents also violated the Act by running for elective office. The 

Board found that the penalty of removal was warranted for each of 

these three respondents. In separate decisions, the Board approved 

settlement agreements entered into by three of the other 

respondents, and, in another decision, the Board found that removal 

of one respondent was not warranted. With respect to the remaining respondent, the Board had 

dismissed the action during the previous fiscal year on a motion made by the Special Counsel. 

Llewellyn M. Fischer General Counsel

One Board decision in a Hatch Act case ordered the withholding of Federal funds from a state 

agency because the agency had not removed an employee, as ordered by the Board, who had earlier 

been found to have violated the Hatch Act. In the four other Hatch cases, each involving one 

respondent, the Board ordered 

removal of the employee in one, 

ordered debarment in another, 

and two of the cases were settled. 

SPECIAL COUNSEL DISCIPLINARY 

ACTIONS 

One of the five disciplinary 

actions brought by the Special 

Counsel involved a claim of 

nepotism and was settled upon 

an admission of guilt, with the 

respondent being fined $750. 

The respondent had committed a 

prohibited personnel practice by 

hiring and promoting his niece. 

Two other Special Counsel 

disciplinary actions were also 

settled. In the two remaining 

cases, one removal and one 

debarment were ordered. 
SPECIAL COUNSEL STAY REQUESTS 

Decisions were issued on 9 Special Counsel initial requests for stays and on 14 requests by the 

Special Counsel for extensions of stays that had been granted. Of the nine initial requests, seven 

were granted by a Board member, one went into effect after three days by operation of law, and one 

was withdrawn by the Special Counsel. Of the 14 requests for extensions of stays, 12 were granted 

and 2 were denied. The Special Counsel requested more than one extension in six cases. 01 the nine 

initial stay requests, all were brought by the Special Counsel on behalf of whistle-blowers. Information 

on the stay requests in whistleblower cases is provided in the special section of this report, 

"Adjudication of Whistleblower Cases under the Whistleblower Protection Act of 1989." 

REVIEW OF OPM REGULATION 

The Board decided only one case involving a request for review of an OPM regulation. In that case, 

the National Treasury Employees Union requested that the Board declare 5 CFR 511.609 invalid. The 

Board denied the request because it was not shown that the regulation required the commission of a 

prohibited personnel practice and because any conflict between the regulation and the statute, 

which provides for exclusive representation in any formal discussion, could be resolved in another 

forum. 

ADDENDUM CASES 

An addendum case decision was rendered in an attorney fee request following adjudication of a 

disciplinary action brought by the Special Counsel. The denial of the request followed Board 

precedent that there is no legal basis on which to award fees against the Government in 

disciplinary actions brought by the Special Counsel. The other addendum case decision, a 

request for compliance, was also denied by the Board. 

SES PERFORMANCE-BASED REMOVAL 

In addition to the original jurisdiction cases decided by the Board, the Administrative Law 

Judge held one informal hearing in an SES performance-based removal case. The case involved a 

career appointee in the Senior Executive Service, who was removed from his position and placed in 

another civil service position for less than fully successful executive performance. 

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

Fiscal Year 1990) 
Litigation 

MONITORED LITIGATION 

During Fiscal Year 1990, the Board monitored over 650 cases involving appeals of 

decisions issued by the Board under its appellate jurisdiction. These cases are filed in the United 

States Court of Appeals for the Federal Circuit. Although the agency against which the appeal is filed 

is the named respondent, and the Department of Justice defends the agency, the Board monitors this 

litigation closely. Board activities in connection with monitored litigation include evaluating the case to 

determine if intervention is appropriate, responding to inquiries, assisting in drafting any briefs, 

preparing a case summary and chronology, and analyzing the published decision. 

ACTIVE LITIGATION 

The Whistleblower Protection Act of 1989 granted the Board litigation authority to defend its 

appellate decisions except where the merits of the underlying personnel decision or a request for 

attorney fees is at issue. Only actions commenced after the effective date of the Whistleblower 

Protection Act, July 9, 1989, may be litigated by the Board. Eleven such cases were filed during Fiscal Year 

1990. This litigation caseload will increase as actions that were begun after the effective date of the 

Whistleblower Protection Act reach the judicial review stage. 

The Board is the named respondent in civil actions appealing decisions issued under its 

original jurisdiction authority. These cases are also filed in the United States Court of Appeals for the 

Federal Circuit, except for Hatch Act cases involving employees of state and local governments, which 

are filed in Federal district courts. These cases typically involve complex issues such as the extent 

of the Special Counsel's jurisdiction and Hatch Act violations. Other active litigation includes 

discrimination cases filed in the various Federal district courts when the Board is a defendant, cases 

in which OPM petitions for review in the Federal Circuit, and administrative litigation arising out of 

appeals to the Board filed by MSPB employees. 

Among the active litigation cases decided in Fiscal Year 1990 were two Federal Circuit decisions in 

cases that involved complex issues concerning the rights of former spouses to survivor benefits under 

the Civil Service Retirement Spouse Equity Act of 1984, as amended by the Federal Employees Benefits 

Improvement Act of 1986. The Federal Circuit affirmed the Board's decisions in these cases. 

ENFORCEMENT OF SUBPOENAS 

In a case of first impression, the Board sought court enforcement of subpoenas issued by the 

Special Counsel. This enforcement mechanism for Special Counsel subpoenas was created by the 

Whistleblower Protection Act. A district court granted the Board's motion to enforce subpoenas 

issued by the Special Counsel during the course of an investigation in a Whistleblower Protection Act 

case. 

In another district court proceeding, the Board sought enforcement of a subpoena issued by one 

of its administrative judges. The court dismissed the action after the witness complied with the 

Board's subpoena. 

(See Appendix C for summaries of the significant litigation activities of the Board during Fiscal Year 1990.) 
Reviews of OPM Significant Actions and Merit 

Systems Studies 

THE STATUTORY STUDIES FUNCTION 

The Civil Service Reform Act assigned the Board, in addition to its adjudicatory functions, 

the important responsibilities of reviewing the significant actions of the Office of Personnel 

Management and conducting studies of the civil service and other merit systems. These oversight 

functions were vested in the Board to help ensure that the Government would be administered in 

an effective and efficient manner. The Act included a requirement that the Board report annually 

to the President and the Congress on whether the significant actions of OPM are in accord with 

the merit system principles and free of prohibited personnel practices. The Board's legislative 

mandate with respect to its OPM oversight and studies functions is broad in scope and gives the 

Board a great deal of discretion in deciding what to review and how to review it. 

Typically, the Board solicits potential study topics from a wide variety of sources in developing its 

OPM oversight and studies 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 subject matter experts, computerbased data analysis, and reviews of secondary source material. 

REPORTS ISSUED IN FISCAL YEAR 1990 

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

as required by law, but are also reviewed by 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. During Fiscal Year 1990, the Board issued seven 

major reports on important civil service issues. 

Reports on OPM significant actions issued were: 

 OPM's Classification and Qualifications Systems: A Renewed 

Emphasis, A Changing Perspective – An analysis of OPM's 

approach to developing standards for determining job 

classifications and individual qualifications; and 

 Attracting and Selecting Quality Applicants for Federal 

Employment - A study of OPM efforts to improve Government 

recruitment and an MSPB assessment of OPM proposals to 

modify the selection process for entry-level jobs in Professional 

and Administrative Career (PAC) positions. 

The other studies issued in Fiscal Year 1990 were: 

 Delegation and Decentralization: Personnel Management Simplification 

Efforts in the Federal Government – A study of OPM and agency initiatives to free managers 

from overly prescriptive personnel rules; 

Evangeline W Swift 

Director, Policy and Evaluation

 The Senior Executive Service: Views of Former Federal Executives – A survey of former SES 

members to determine why they left and their suggestions for improvements to the SES; 

 Federal Personnel Management Since Civil Service Reform: A Survey of Federal Personnel 

Officials – A report on the opinions and perceptions of over 3,500 Federal personnel specialists 

on various human resource management issues, including whether the expectations of the 

Federal personnel management system envisioned by the Civil Service Reform Act have been 

realized; 
 Why Are Employees Leaving the 

Federal Government? Results of 

an Exit Survey – A study of the 

reasons why employees resigned 

or retired, based on the results of 

an MSPB survey of nearly 2,800 

Federal employees who left fulltime, permanent, white-collar 

positions during a 3-month 

period in 1989; and 

John Palguta of the Office of Policy and 

Evaluation

 Working for America: A Federal 

Employee Survey – A summary of 

the responses of nearly 16,000 

Federal employees to the 1989 

MSPB Merit Principles Survey on a 

wide variety of issues such as pay, 

working conditions, and the 

quality of supervisors, co-workers, 

and job applicants. 

IMPACT OF BOARD STUDIES 

The Board's studies are widely used and referenced by Executive branch agencies and the 

Congress, as well as by academicians, public interest groups, and others who influence public 

personnel policies and operations. Each report is typically distributed, largely on request, to more 

than 2,000 organizations and individuals. Data from the Board's surveys are frequently requested by 

agencies to support their own or governmentwide improvement efforts. The Board also receives 

requests for survey data and other information from the General Accounting Office, the 

Congressional Budget Office, and the Office of Personnel Management 

During Fiscal Year 1990, the Board was asked by agencies for specialized data runs relating to both 

the Merit Principles Survey and the study of why employees leave the Federal Government Of the 22 

Federal departments and agencies with employees who responded to the Merit Principles Survey, 17 

contacted the Board to request information relating specifically to their agencies. The Board's 

questionnaire for the study on why employees leave was used by several agencies in the conduct of 

their internal studies of employee turnover. 

The Board's data are used as authoritative sources of information in a wide variety of contexts. 

They are cited in articles, briefs, GAO reports, congressional testimony, and by Members of 

Congress on topics such as pay reform, selection processes, and the administration of the SES. 

Moreover, findings and recommendations from Board reports appear in a variety of forums. For 

example, GAO cited the Board as an authoritative source in several of its reports, and important 

provisions of the proposed SES Improvements Act of 1990 are in accord with recommendations in 

the Board's report on the views of former senior executives. 

Over the years, a number of remedial actions have been initiated by Federal agencies in response 

to actual or potential problems identified through MSPB studies and reports. Considerable media 

attention has been given to Board studies, and that attention, in turn, has increased their impact by 

keeping important civil service issues in the public arena and ensuring that the Board's views on these 

issues are included in the public debate. 
ASSESSING WORK FORCE QUALITY 

In addition to its OPM oversight and special studies agenda, the Board has assigned a high 

priority to assessing the quality of the Federal work force. Following the conference that the Board 

and OPM co-sponsored in 1989, the two agencies created a Joint Advisory Committee on Federal 

Workforce Quality Assessment that is made up of distinguished leaders in the field. The committee 

is co-chaired by the MSPB Director of Policy and Evaluation and the OPM Assistan Director for 

Research and Development Its membership includes 25 individuals from a diverse group of Federal 

agencies, local government, the private sector, academia, labor unions, ant professional 

associations. 

 At the meeting of the Committee on Workforce Quality Assessment are (left to right) 

Evangeline W Swift, Vice Chairman Johnson, and OPM Director Constance Newman. 

The committee held its first meeting 

on May 1, 1990 in Washington, DC. 

Members received a briefing on work force 

quality assessment projects undertaken 

by OPM and MSPB. The committee 

discussed the complex factors that must 

be considered in developing a 

comprehensive understanding of the level 

of skills and abilities of the work force and 

the relationship to the services produced. 

Future meetings of the advisory 

committee will focus on methods 

currently being employed both inside and 

outside the Federal Government to 

assess and improve work force quality 

and existing efforts to collect quality data. 

The committee intends to suggest 

alternative models for assessing work 

force quality and to recommend specific 

projects to be undertaken by OPM, the 

Board, and individual agencies to 

improve—or maintain—the quality of the 

Federal work force. It will also provide recommendations for continuing efforts to implement a 

system to provide objective and usable data on the quality of the Federal work force. 

(See Appendix D for summaries of the reports of OPM oversight reviews and merit system studies issued in Fiscal 

Year 1990) 
Outreach Activities 

The Board's outreach programs to major constituencies continued in Fiscal Year 1990 

to enhance its reputation as a fair and impartial adjudicator and as an authoritative source on civil 

service matters. The Board members and headquarters and regional staff addressed groups, 

participated in seminars and conferences, conducted training programs, and published articles in 

order to further an understanding of the Board's policies and procedures and of important issues in 

Federal personnel law. 

PERSONAL APPEARANCES, MEETINGS, AND LNSTRUCTION 

The regional directors and administrative judges delivered more than 100 speeches at meetings 

and conferences attended by thousands of participants and engaged in a variety of other outreach 

activities. The Chicago Regional Office co-hosted a Federal Circuit Bar Conference and a Labor Law 

Conference. Several administrative judges taught courses at the National Judicial College, and an 

administrative judge in the Dallas Regional Office was appointed to the faculty of that college. In 

addition to teaching at the college, the administrative judge co-developed and participated in a live 

television broadcast providing training to administrative law judges in 20 states. 

Headquarters attorneys participated in numerous outreach activities to inform agencies, unions, 

and other interested segments of the public about the Board, its authorities, jurisdiction, practices, 

procedures, and significant decisions. Much of the outreach effort in Fiscal Year 1990 was directed 

towards explaining the provisions of the Whistleblower Protection Act, the Board's implementing 

regulations, and Board decisions on whistleblower appeals and stay requests covered by the Act. 

A delegation from the Board participated in the Annual Judicial Conference of the United States 

Court of Appeals for the Federal Circuit, and Board attorneys spoke at various meetings of the Federal 

Circuit Bar Association. Staff of the Clerk of the Board provided seminars on "Handling Employee 

Appeals" in conjunction with the OPM-sponsored SES Candidate Development Program and 

conducted an Appeal Rights Workshop for postmasters, sponsored by the National Association of 

Postmasters. Other outreach activities included the OPM Annual Symposium on Labor Relations and 

Personnel Law, the Small Agency Inspectors General Meeting, and meetings sponsored by the Public 

Administration Forum, the Public Health Service, the Department of the Navy, the Department of 

Agriculture, and postal service unions. 

In June 1990, the Board, the Equal Employment Opportunity Commission, the Federal Labor 

Relations Authority, the Office of Personnel Management, and the Office of Special Counsel jointly 

sponsored the Federal Dispute Resolution Conference. The conference promoted an exchange of 

ideas and information on successful efforts to improve the processing and resolution of complaints 

and grievances, and provided supervisors and managers with the skills and knowledge needed to 

handle employment disputes effectively. 

The studies staff participated in various conferences, seminars, and symposia to discuss the 

results and implications of the Board's special study and OPM oversight work. Sponsoring 

organizations included the American Society for Public Administration (ASPA), the International 

Personnel Management Association (IPMA), the IPMA Assessment Council, the Classification and 

Compensation Society, the National Academy of Science, and OPM's Executive Seminar Centers, 

among others. In addition, members of the studies staff spoke at several local universities, at the 

management meetings and conferences of several Federal agencies, and on a local radio interview 

show. 
REPRESENTATION IN ORGANIZATIONS 

The Merit Systems Protection Board is a member of the Small Agency Council, the voluntary 

association of Federal agencies that employ fewer than 6,000 people. During Fiscal Year 1990, the 

Board's Deputy Executive Director served on the Council's Executive Committee. 

The Inspector General represents the Board on the Coordinating Conference of the President's 

Council on Integrity and Efficiency (PCIE), the Quarterly Executive Seminars of the PCIE, the 

Institute of Internal Auditors, the Association of Federal Investigators, and the Directors of Federal 

Investigations. In addition to membership in these organizations, the Inspector General served on 

subcommittees and provided various leadership ideas for their training and seminar activities during 

the fiscal year. 

ARTICLES AND PUBLICATIONS 

Three Board attorneys jointly authored an article titled "Federal Employment Decisions of the 

Federal Circuit in 1988," which was published in the American University Law Review, Summer 

1989 edition (published in 1990). Members of the studies staff published four articles in professional 

journals. These articles were: "Voices of Experience" and "Deja Vu: Return to Written Tests" 

in the summer issue of Federal Managers magazine, "Why the Next Generation Is Leaving" in the 

summer issue of The Bureaucrat, and "Meeting Federal Work Force Needs with Regard to Scientists 

and Engineers: The Role of the U.S. Office of Personnel Management" in a National Research Council 

publication titled Recruitment, Retention, and Utilization of 

Federal Scientists and Engineers.

The Board issued its annual report of case decisions to provide 

detailed information on the decisions issued by the Board and its 

administrative judges in Fiscal Year 1989. The report included 

information on initial appeals, petitions for review, and addendum 

cases. In addition to total numbers, various breakdowns were 

provided by type of appeal, agency, disposition, and case processing 

time. For the first time, the report provided information on appeals 

involving such special interest issues as sexual harassment, a

drug testing, AIDS, and accommodation of employees handica

by drug and/or alcohol abuse. The report also reviewed Board

decisions in cases arising under its original jurisdiction, case

the Board reopened on its own motion, cases in which OPM 

requested reconsideration, and discrimination cases that were appealed 

to the Equal Employment Opportunity Commission. 

gency 

pped 

s that 

The Board continued its new series of public information publications 

with the issuance of "Questions & Answers About Appeals" in the fall of 1989 and "Questions & 

Answers About Whistleblower Appeals" in early 1990. The former publication provides information 

on the Board's appellate jurisdiction and its procedures for appeals generally, while the latter 

publication provides information on the special provisions applicable to whistleblower appeals under 

the Whistleblower Protection Act of 1989. Both publications are intended primarily for Federal 

employees and are written in a "plain English" question and answer format. 

Paul D. Mahoney Director, 

Office of Management 

Analysis 

Several thousand copies of these publications were distributed by the Board headquarters and 

regional offices in outreach activities and in response to individual requests. In late summer 1990, 

the Board ordered a second printing of each publication, revised to reflect changes made in the 

Board's final 5 CFR Part 1201 arid 5 CFR Part 1209 regulations. Notices for agencies to ride the 

printing requisitions were published in the Federal Register, and mailings were sent to agency 

personnel officers and printing officers because of the interest numerous agencies had shown in 

obtaining the publications in quantity. At the end of the fiscal year, the Board had completed work 

on a Spanish-language edition of "Questions & Answers About Appeals." 
FEDERAL EXECUTIVE INSTITUTE 

Executive Director, Lucretia F. Myers was one of only five Presidential Distinguished Rank Award winners 

selected to participate in the Federal Executive Institute's (FEI) core residential program, Leadership for 

a Democratic Society. The program addresses the active leadership roles expected of career 

Federal executives and the democratic values and beliefs underpinning that leadership. Ms. 

Myers was invited to the FEI to reflect on the nature of leadership, the demands facing today's 

Federal executive, and the leadership strategies executives apply in their work. She spent a week 

in residence at FEI in ongoing dialogue with program participants, staff, and faculty. An article 

on her leadership philosophy was published in the spring issue of The Bureaucrat, the journal 

for public managers. 

INTERNATIONAL VISITORS PROGRAM 

A continuing activity of particular interest is the Board's international visitors program. 

Conducted at Board headquarters by the Chairman and senior staff, this program is responsive 

to requests from foreign visitors who wish to visit the Board in order to learn about merit system 

principles and the Board's practices and procedures. During Fiscal Year 1990, the Board made 

presentations to approximately 50 visitors from a number of countries, including the 

Philippines, Australia, Kenya, Uganda, China, Indonesia, Japan, and India. The visitors 

included governors, lieutenant governors, heads of agencies, inspectors general, staff directors, 

and staff attorneys. Many of the individuals visited the Board during a time when their 

sponsoring countries were in the process of revising their appeals systems or developing an 

appeals system to implement a new law. 
Administration, Finance, and Human 

Resources 

ADMINISTRATION IMPROVEMENT OBJECTIVES 

During Fiscal Year 1990, the Board continued to e n h a n c e m a n a g e m e n t 

efficiency and effectiveness through its focus on management improvement objectives. To 

support the strategic planning process, regional and headquarters office directors developed 146 

action plans for accomplishing improved operations under one of the four major improvement 

objectives. These are: 

 To ensure the quality of decisions and the adjudicatory process; 

 To enhance the merit systems studies and OPM oversight functions; 

 To improve the effectiveness 

of outreach activities; and 

 To continue to improve management efficiency and effectiveness. 

These action plans were tracked throughout the fiscal year and resulted in significant systems 

and program improvements. 

PROGRAM AND MANAGEMENT REVIEWS 

The Board conducted Administrative Program and Management Reviews, in accordance with the 

requirements of OMB Circular No. A-123, in its Boston, Philadelphia, and Washington regional 

offices, and in the offices of the Director of Administration and the 

Information Resources Management Division at headquarters. These reviews cover both 

administrative management of the office plus program management if the office has delegated 

responsibility for a program. The reports of these reviews have proven extremely beneficial in 

improving the quality of administrative and program functions. A 5-year cycle has been established to 

review all headquarters and regional offices. 

Darrell L. Netherton 

Director, Office of Administration 

AUTOMATED SYSTEMS 

Among the significant management improvement efforts were 

the continued development and expanded application of automated 

technology throughout all Board programs and administrative 

systems. The transition to an IBM-compatible personal computer 

environment throughout the Board was completed. The 

headquarters minicomputer upgrade needed to support a new 

relational data base and fourth generation language environment 

was installed and made operational. Work began on the actual 

systems development of the new Case Management System, which 

was 70 percent completed by the end of the fiscal year. The Case Management System will be made 

operational in Fiscal Year 1991 and includes many enhancements to the existing automated system, 

such as automated generation of case-related correspondence. 
A telecommunications network study was completed, leading to plans for a total replacement 

of the existing network used to connect the regional offices to headquarters. The new system is 

expected to result in significant savings over the next three years in terms of reduced equipment 

and software maintenance costs, and a reduction in regional and headquarters staff time needed to 

maintain the existing network In addition, the new network will be much more reliable and will 

support the data gathering and reporting requirements imposed by the new Case Management 

System. 

The Board implemented a new software program for purchasing that resulted in a decrease 

in the average processing time for orders from 30 days to less than a week. In addition, record 

keeping and documentation improved, and customer satisfaction increased. An exhaustive review of 

the receiving, acceptance, and payment processes resulted in many changes to improve internal 

controls, ensure timely and accurate vendor payments, and resolve any disputes promptly. 

An extensive review of the property management process resulted in a revision of accountability standards and implementation of a new software program. This program provides improved 

accountability, allows use of state-of-the-art bar coding technology for inventory and reconciliation, 

and is expected to reduce both labor and dollar costs associated with the property management 

function. 

The Board implemented programs for recording employee time and attendance that resulted 

in more accurate and timely processing and reduced the amount of staff time required for 

recording time and attendance. The Board also implemented software for recording travel 

authorization and vouchers, thus improving the accuracy of travel documents and financial 

controls, and reducing the time for payment of vouchers from weeks to a few days. 

The Board's system for issuing 

internal notices and orders—

previously a manual, paperoriented system requiring much 

personnel intervention and 

generation of paper—was 

automated by using an electronic 

library system resident on the 

Board's minicomputer to prepare 

and distribute Board notices and 

orders. This system now contains 

an index of all Board notices and 

orders, with on-line search 

capability to assist users in finding 

notices and orders on any subject. 

Atlanta Regional Office

The preparation of monthly 

graphs representing key case 

workload information was 

automated. This reduced the time 

needed to prepare the graphs from four days to less than one, thereby providing management with 

the information needed to correct any problems in a more timely manner. 

OTHER MANAGEMENT A C T I V I T I E S 

The Board improved the process for distributing its opinions and orders to commercial publishers, 

offices, and OPM. Included in the process is a mechanism for identifying significant opinions and 

orders and sending them to interested users via facsimile. A CD-ROM capability was added to the 

Board's library in a continuing effort to make this facility "state-of-the-art." All of the Board's Privacy 

Act systems of records were updated, resulting in a reduction of the number of Privacy Act systems of 

records from 13 to 8. 

A thorough study of the Board's procedures for original jurisdiction cases brought by the Office 

of Special Counsel was conducted during the fiscal year. 
The Special Counsel prosecutes Hatch Act cases before the Board. as well as other disciplinary 

action against individuals and corrective actions against agencies. The study revealed that the Board 

offices involved in processing 

Special Counsel cases have 

efficient and effective 

procedures in place to ensure that 

these cases are processed in an 

orderly and timely fashion. 

The Office of the Inspector 

General completed evaluations of 

the following Board programs and 

operations during Fiscal Year 1990: 

implementation of the Computer 

Security Act of 1987, 

administrative and program 

management reviews of 

headquarters and regional offices, 

and fourth quarter spending. The 

Inspector General also conducted 

audits of imprest funds maintained 

by the Board. 

The Office of the Inspector 

General completed evaluations of 

the following Board programs and 

operations during Fiscal Year 1990: 

implementation of the Computer 

Security Act of 1987, 

administrative and program 

management reviews of 

headquarters and regional offices, 

and fourth quarter spending. The 

Inspector General also conducted 

audits of imprest funds maintained 

by the Board. 

Assistant Treasury Secretary, Linda M Combs, assists Chairman Levinson in 

unveiling the portrait of Frances Perkins at the hearing room dedication.

In a reorganization at 

headquarters, the Office of Equal Employment Opportunity, formerly a division of the Office of 

Administration, was established as a separate office to emphasize the importance of the agency's EEO 

program. While reporting to the Executive Director, the Director of the office also has direct access to 

the Chairman on EEO matters. 

At Board headquarters, the new Frances Perkins Hearing 

Room—named in honor of the former Secretary of Labor—was 

dedicated on January 9, 1990. Ms. Perkins served as Secretary 

of Labor from 1932 to 1945 and was the first woman appointed 

to a Cabinet position. In 1946, she was appointed to the Civil 

Service Commission, the Board's predecessor agency, and 

served as a commissioner for 

seven years. 

At Board headquarters, the new Frances Perkins Hearing 

Room—named in honor of the former Secretary of Labor—was 

dedicated on January 9, 1990. Ms. Perkins served as Secretary 

of Labor from 1932 to 1945 and was the first woman appointed 

to a Cabinet position. In 1946, she was appointed to the Civil 

Service Commission, the Board's predecessor agency, and 

served as a commissioner for 

seven years. 

Frances C. Perkins portrait 

The naming of the hearing 

room to honor Frances Perkins is a part of the Board's continuing 

effort to recall its roots in the Civil Service Commission. The first 

action in this regard was the addition of the date "1883," the year t

Commission was established, to the Board's seal. This action was 

followed by the naming of the Board's highest award, the Theodore 

Roosevelt Award, in honor of the former President and Civil Service 

Commissioner. 

The naming of the hearing 

room to honor Frances Perkins is a part of the Board's continuing 

effort to recall its roots in the Civil Service Commission. The first 

action in this regard was the addition of the date "1883," the year t

Commission was established, to the Board's seal. This action was 

followed by the naming of the Board's highest award, the Theodore 

Roosevelt Award, in honor of the former President and Civil Service 

Commissioner. 

T Paul Riegert Inspector General 

he 
FINANCIAL STATEMENT 

The obligations of the Merit Systems Protection Board for Fiscal Year 1990 (October 1, 

1989, through September 30, 1990) are shown below: 

1990 ACTUAL OBLIGATIONS 

(Thousands of dollars) 

Direct obligations 

tion 

1

anent 8

ersonnel compensation 

12

1,8

ersonnel 

tation of persons 

1

1,7

ents to others 

tilities, and miscellaneous 6

ion 

Supplies and materials 414 

Equipment 1,168 

Subtotal 20,828 

Personnel compensa

Full-time permanent 1,806 

Other than full-time perm 38 

Other P 336 

Subtotal ,980 

Personnel benefits 66 

Benefits for former p 5 

Travel and transpor 458 

Transportation of things 

A 

07 

Rental payment to GS 15 

Rental paym 49 

Communications, u 99 

charges 

Printing and reproduct 172 

Other services 1,195 

Reimbursable obligations 1,577 

Total obligations 22,405 

Connie Shaw of the Financial and Administrative Management Division 
HUMAN RESOURCES 

PERSONNEL ACTIVITIES 

The full-time equivalent employment for the Board in Fiscal Year 1990 was 299. 

During the fiscal year, the Board evaluated the new Performance Management Plan that had 

been implemented during the previous fiscal year. As a result of this evaluation, the Board 

identified a need for continuing training of its managers and streamlining in the performance 

management area. 

The Personnel Division conducted a study to identify workflow and automation 

improvements needed to provide efficient and effective personnel services to the Board. At the 

beginning to the study, a Personnel Actions Tracking System was developed to report the status 

of actions to managers and to analyze workload. Also, a Personnel Security Information System 

was developed to track and control the processing of actions related to personnel suitability and 

national security access. This system allows Board staff to determine quickly the status of any 

investigation for any Board employee. 

Janice Fritts Director, 

Office of Equal Employment Opportunity

EEO ACTIVITIES 

The representation of women and minorities in the Board's 

work force continues to be impressive. Women and minorities are 

not clustered in lower grades, and the Board's representation of 

these groups in professional occupations is high. The following 

table show: the percentages of female and minority attorneys, as 

well as the percentage representation of these groups in the 

Board's work force as a whole. 

Mary Green, Staff Assistant to the 

Executive Director 

MSPB EMPLOYMENT BY RACE, NATIONAL ORIGIN AND SEX 

Data as of September 30, 1990 

Attorneys 

No. in Percent of 

 Attorney Attorney 

 WorkforceWorkforce 

Male 79 59.4 

Female 54 40.6 

Total 133 100.0 

Minority * 25 18.8 

Majority 108 81.2 

Total 13 3 100.0 

 MSPB (Entire Agency) 

Male 131 41.7 

Female 183 58.3 

Total 314 100.0 

Minority* 104 33.1 

Majority 210 66.9 

Total 314 100.0 

* Excluding White/Female 
The Office of Equal Employment Opportunity participated in local and national recruitment 

conferences during Fiscal Year 1990. Representatives attended two national conferences, one 

sponsored by Federally Employed Women and the other by Blacks In Government, and distributed 

materials about the Board's mission and employment opportunities. Recruitment was targeted to 

increase the Board's representation of minorities, women, and individuals with disabilities. 

Board attorneys expended considerable effort, as well, in recruiting campaigns to help the 

Board meet its goal of recruiting and maintaining a balanced work force. In this regard, the Board 

has focused on recruiting at minority job fairs and through law school consortia in which a high 

percentage of minorities are represented. Board representatives participated in the Southeastern 

Minority Job Fair, the Hispanic Bar Association Placement Day, the Northeastern Minority Job 

Fair, and "Texas in Washington Day." 

Board attorneys expended considerable effort, as well, in recruiting campaigns to help the 

Board meet its goal of recruiting and maintaining a balanced work force. In this regard, the Board 

has focused on recruiting at minority job fairs and through law school consortia in which a high 

percentage of minorities are represented. Board representatives participated in the Southeastern 

Minority Job Fair, the Hispanic Bar Association Placement Day, the Northeastern Minority Job 

Fair, and "Texas in Washington Day." 

AWARDS 

In November 1989, the Chairman presented 

two employees with the Theodore Roosevelt 

Award. The award was established in late Fiscal 

Year 1988 to honor Board employees who 

demonstrate distinguished performance or 

leadership in support of the Board's mission to 

protect Federal merit systems through its 

adjudicatory and studies functions. Lucretia F. 

Myers, Executive Director, and RJ. Payne, 

Regional Director of the Atlanta Regional Office, 

were honored with this award for Fiscal Year 

1990. Chairman Levinson with Theodore Roosevelt Award winners, Lucretia F. 

Myers and R.J. Payne 

In November 1989, the Chairman presented 

two employees with the Theodore Roosevelt 

Award. The award was established in late Fiscal 

Year 1988 to honor Board employees who 

demonstrate distinguished performance or 

leadership in support of the Board's mission to 

protect Federal merit systems through its 

adjudicatory and studies functions. Lucretia F. 

Myers, Executive Director, and RJ. Payne, 

Regional Director of the Atlanta Regional Office, 

were honored with this award for Fiscal Year 

1990. 

During Fiscal Year 1990, the Board granted 

Performance Awards, Quality Step Increases, and Performance Bonuses to over200 of its employees. 

In addition, approximately 15 employees were rewarded for performing Special Acts or Services. 

Recipients of the Chairman's Awards for Excellence pose with the Board. 
Award recipient Sylvia Moore (left) is 

congratulated by Alicia Pickett at the 

reception for honorees. 

PLANNING FOR A POSSIBLE 

SEQUESTER 

During the final months of 

Fiscal Year 1990, the Board 

developed plans to deal with a 

possible sequester under the 

Gramm-Rudman-Hollings Act. 

Actions taken included 

instituting a total hiring freeze and requiring large reductions in non-personnel spending. Even 

after taking into account the impact of these actions in the new fiscal year, the Board projected 

that furloughs of up to 22 days for all employees would be necessary in the first quarter of Fiscal 

Year 1991 to meet the requirements of a sequester. Such furloughs would have a negative impact 

on all Board operations. 

Notices of proposed furloughs were issued to the more than 300 Board employees at the end of 

August Throughout September, headquarters office directors met at least weekly to review budget 

and furlough plans, and both headquarters and regional office directors met frequently with their 

staffs. As management continued planning for various scenarios ranging from no sequester to a 

sequester for the entire fiscal year, employees were kept advised through notices and electronic 

mail messages. In the final week of September, all employees were given notices that furloughs 

could begin in the first week of October. The situation was further complicated at that time by the 

possibility of a lapse in appropriation. This required instructing all employees in plans to shut 

down the agency should no appropriation be in place as of October 1. 

As discussed in the "Original Jurisdiction" section of this report, the possibility of sequestration 

had an actual impact on the Board's workload in Fiscal Year 1990 with the filing of complaints by 

23 agencies seeking to furlough over 1,000 administrative law judges. 

This increase in workload required the Board to hire additional administrative law judges to 

adjudicate the cases and to make special arrangements for office space, hearing locations, and 

support services. 

In addition, with agencies issuing furlough notices to over one million Federal employees, the 

Board began planning for the possibility of receiving as many as 120,000 additional appeals in 

Fiscal Year 1991 should furloughs be effected governmentwide. 
Appendix A 

Significant Board Decisions 

Appellate Jurisdiction Cases 

Significant appellate jurisdiction cases decided by the Board during Fiscal Year 1990 included 

the following: 

Discrimination (Mixed Cases) 

Miller v. USPS,PH07528910178 (February 15, 1990) 

The Board held that the fact that an impairment forecloses an employee from performing the 

duties of a particular position does not determine whether the impairment constitutes a 

"handicapping condition" for purposes of the Rehabilitation Act. The impairment must foreclose the 

type of employment involved generally to constitute a handicap. In this case, the evidence established 

that the appellant was unable to work at two of the agency's facilities in her geographic area because 

of her allergies to dust. She presented no evidence, however, that the allergies would limit her 

employability in other lines of work in the geographic area. The Board examined relevant court anc 

EEOC decisions, the latter of which were entitled to deference since they constituted an agency's 

interpretation of its own regulations, and found that these decisions supported the Board's decision 

that the appellant is not a handicapped person. 

Bolling v. Navy, SF07528810774 (March 2, 1990) 

The appellant was removed for possession of marijuana on agency premises. The Board 

concluded that, assuming the appellant proved he was addicted to marijuana, the agency was not 

required to accommodate him because he had not shown that his misconduct was caused by that 

handicap. The Board reasoned that because the appellant did not show that he was under the 

influence of marijuana at the time, he, therefore, retained sufficient control over his faculties to know 

the consequences of his acts. Further, possession of a drug, even one that the person is addicted to, 

is not so intrinsic to drug addition that, without more, a causal connection is established. The 

determination of whether possession is entirely a manifestation of the addiction is to be based on the 

facts and circumstances of each case, and the Board will not apply a per se rule. The Board held, 

however, that removal was too harsh a penalty for this misconduct and that a 90-day suspension was 

the maximum reasonable penalty that could be imposed. 

Calton v. Army, DE07528810362 (April 4, 1990) 

After the Board sustained the appellant's removal based on AWOL and intoxication, the EEOC 

issued a decision disagreeing, finding that the action constituted handicap discrimination. The 

Board, under its limited standard of review set out in Ignacio, concurred in and adopted EEOC's 

decision. That decision was based on the finding that by not giving the appellant a firm choice 

between rehabilitation and termination, the agency failed to accommodate him. Based on that ruling, 

the Board stated that it would henceforth require agencies to provide a "firm choice" between 

treatment and termination to employees handicapped by alcoholism. Thus, the removal was not 

sustained. As corrective action, the Board ordered the agency to offer the appellant reemployment in 

the same or a similar position pending proof of successful completion of rehabilitation and continued 

abstinence. The offer was to be conditioned on the availability of a position for which the appellant was 

qualified. If no vacancy existed, the agency was ordered to pay the appellant's salary and benefits until 

one occurred. 
Jurisdiction 

Gordon v. Massachusetts National Guard, BNO3538910055 (October 27, 1989) 

On the issue of jurisdiction over National Guard technicians, the Board noted that it had 

authority under 38 U.S.C. 2024(d) to examine claims of denial of restoration if the appellant was 

formerly employed by "anagency." It referenced its earlier decision in Special Counsel v. Everett, which 

found that the National Guard was a hybrid organization, with some Federal and some state 

components, and noted that in 1968, Congress federalized to a limited extent Guard technicians, 

who were formerly considered state employees. The Board concluded that Guard technicians are 

Federal employees who do not work in a Federal agency, and, therefore, found that the appellant 

could not vindicate any right to restoration before the Board. In this regard, the Board noted that 

this decision was consistent with its enforcement authority, which is limited to ordering Federal 

agencies and employees to comply. Here, even if the appellant were a Federal employee, the only 

person authorized to hire him, the adjutant general, is a state official. It would be incongruous to 

order the agency to take an action with respect to the appellant and then not have the authority to 

enforce that order. Finally, the Board noted that although restoration statutes are to be construed 

liberally, this decision does not constitute a ruling on the appellant's claim to restoration, only on 

the Board's authority to hear that claim. The Board dismissed the appeal. 

Pangarova v. Army, AT07528810091 (November 9, 1989) 

The appellant was removed for failure to maintain a security clearance after the agency 

revoked her clearance. The Board found that it lacked authority to review the merits of the 

security clearance determination, that the agency complied with its regulations when it made 

attempts to reassign her but found no available positions, and that the removal action was proper. 

In reaching this conclusion, the Board found that it lacked authority to consider the appellant's 

allegations of discrimination and reprisal. It noted, in this regard, that the Supreme Court in Egan v. 

Department of the Navy had not distinguished between the merits and affirmative defenses when it 

defined the Board's scope of review of security-related cases and that, if the Board were to 

adjudicate such defenses, it would be required to involve itself in the kinds of national security 

determinations the Court found were properly committed to agency discretion. Noting that it lacks 

Article 3 review authority over constitutional claims, the Board concluded that it could not review 

the appellant's claims of discrimination. 

Funk v. Army, SE07528910001 (March 21, 1990) 

The Board announced that it would "require that administrative judges address the issue of 

Board jurisdiction before dismissing an appeal on procedural or timeliness grounds." 

Raymond v. USPS, BN07528910058 (April 23, 1990) 

The Board held that nonpreference-eligible employees of the Postal Service have no appeal 

rights under the reduction in force regulations. The Board explained that the Postal Service is an 

independent establishment, and its employees are not considered employees under 5 U.S.C. 2105 

(e). Under 39 U.S.C. 1005, preference-eligible Postal Service employees have the same rights as 

competitive service employees under Tide 5, including RIF appeal rights. There is no provision 

granting nonpreference-eligible Postal Service employees RIF appeal rights, however. The Board 

found that OPM's regulations in this regard were a reasonable interpretation of its statutory 

authority. 
Quackenbush v. Justice, SF075288C9048 (July 26, 1990) 

After the parties settled the case, the appellant filed a petition for enforcement in which he 

challenged the amount of income tax withheld from his back pay award. The Board noted that it 

is a tribunal of limited jurisdiction. It concluded that the question of whether the amount of 

income tax withheld accords with applicable law, rule, or regulation does not fall within the 

Board's limited jurisdiction. Noting that any relief for the appellant lay in another forum, the Board 

dismissed the petition for enforcement. 

Performance-Based Actions 

Brown v. VA v. OPM, AT04328610077 (April 17, 1990) 

The Board modified its prior holdings and found that when taking a performance-based action 

under Chapter 43, an agency may rely on performance deficiencies occurring at any time during 

the year preceding the notice of proposed action, but only if it can show that the appellant failed to 

demonstrate acceptable performance or to sustain it after having received a reasonable opportunity 

to do so. The Board reiterated that if an employee demonstrates acceptable performance under a 

Performance Improvement Plan (PIP), the agency is precluded from removing or demoting him 

solely on the basis of his pre-PIP performance. In support of its ruling, the Board relied on 5 

U.S.C. 4303(c)(2)(A), which allows a Chapter 43 action to be based on unacceptable performance 

that occurred within the 1-year period ending on the date of the notice of proposed action. The 

Board found that the agency should, under this provision, be allowed to argue pre-PIP 

unacceptable performance if it wishes to present a more complete context for the charged 

deficiencies during the PIP period. The Board also cited the Federal Circuit's decision in Martin 

v. FAA, in which the court held that the Board must hear and consider evidence of pre-PIP 

unacceptable performance because a legally sufficient opportunity to improve does not release an 

employee from the necessity of meeting the terms of his performance plan. Thus, agencies may not 

use a PIP to reduce or increase the standards of performance established at the beginning of the 

appraisal period, and the agency may rely solely on PIP performance only if that shows that 

the employee's performance is unacceptable under his annual performance standards. 

The Board then addressed a second issue, how to measure performance during a PIP period 

when the performance standard at issue is a numerical standard that is set forth on an annual 

basis. With respect to this issue, the Board held that the normal standard may be prorated 

unless seasonal or other variations in workload make a proportional standard unfair and 

inaccurate. Where the workload is fairly constant, an employee should expect that his standard 

will be prorated during a PIP period. However, the action will be sustained only if the agency shows 

that the appellant's performance was unacceptable under the annual standards. 

Sullivan v. Navy, SF04328610843 (April 17, 1990) 

The Board addressed the issue of whether an agency may rely on post-PIP performance in 

taking a Chapter 43 action. It concluded that both 5 U.S.C. 4303(b)(2), which allows the extension 

of the notice period of a Chapter 43 action, and 5 U.S.C. 4303(d), which allows the retention of an 

employee who performs acceptably after a PIP but before the notice is issued, support the 

conclusion that post-PIP performance may not be disregarded for all purposes. Thus, the 

Board held that an agency may rely generally on instances of unacceptable performance in the 

same critical element or elements that occur after the successful completion of a PIP. Reliance 

must be limited to those instances that occur within one year preceding the advance notice of a 

Chapter 43 action. In those cases where no action is taken because of the improvement, the Board 

held that an indefinite delay beyond the close of the PIP should not be countenanced, so that the 

agency may not delay taking action more than one year after the beginning of the PIP. Beyond that 

date, if performance again fails, a new PIP must be initiated before taking a Chapter 43 action. 

Because the agency retains the burden of proving that it provided a bona fide opportunity to 

demonstrate acceptable performance, the Board found that if post-PIP performance is relied 
on and the employee shows that changed circumstances since the PIP render reliance on that PIP 

unfair, the agency must rebut that showing. Such circumstances may include the introduction of 

new technology, procedures, or other work-related factors changing the nature of the work or the 

way it is performed, as well as revisions to the critical element itself. The Board also noted that 

although the degree to which the appellant was on notice that he could be adversely affected by poor 

performance after a successfully-completed PIP may be important in some cases, it is generally no 

defense to an action to say that had he known he was still being monitored, he would have worked 

more diligently. 

The Board further found that it would not be appropriate to impose a formula for application in 

determining the weight to be accorded to post-PIP performance. Rather, on a caseby-case basis, 

where the agency has relied on performance both before and after, as well as during the PIP period, 

the Board will have to determine whether that showing constitutes substantial evidence of 

genuinely unacceptable performance under the applicable standard. 

Retirement-related Issues 

Fusco v. OPM, PH831M8610647 (December 8, 1989) 

In this decision, the Board addressed issues related to the recovery of annuity overpayments 

by OPM. The Board first noted that an appellant has the burden o proof that recovery of an 

annuity overpayment would be against equity and good conscience, and that he may meet that 

burden by showing that recovery would cause him financial hardship. Citing 5 CFR 831.1404, the 

Board noted that financial hardship may be deemed to exist in, but is not limited to, those cases 

where an appellant needs substantially all of his current income and liquid assets to meet current 

ordinary and necessary living expenses. The emphasis of the regulation is on the individual's 

current ability to repay the overpayment, not on his net worth, so that non-liquid asset generally 

should not be considered in determining the ability to repay. OPM's Policy Guidelines are generally 

consistent with this, but state that non-liquid assets can be considered if they are so substantial 

that not considering them offends the conscience, or if the annuitant has converted liquid into nonliquid assets to avoid repayment A liquid asset is cash or an asset readily convertible into cash 

with little or no loss in value (checking accounts, savings accounts, CDs, mutual funds, and 

marketable securities). Non-liquid assets include individual retirement accounts and other similar 

accounts. Based on the Guidelines, the Board found that generally, the first $5,000.00 of liquid 

assets should not be considered as available for recovery. 

In determining whether financial hardship would result, the Board compared monthly income and 

monthly expenses for the entire collection period, giving consideration to anticipated changes in 

those categories during the scheduled period. Monthly "income" includes income from all sources, 

including income made by family members for whom the annuitant claims expenses. "Ordinary 

and necessary living expenses" are those enumerated in 5 CFR 831.1405, but the appellant must 

still show that the amount of such expenses claimed is reasonable. In addition to the enumerated 

expenses, the Guidelines provide that miscellaneous expenses may also be considered if a 

reasonable person would accept the expense as ordinary and necessary. Thus, an appellant must 

show by substantial evidence that the amount of the enumerated expenses, and the type and 

amount of the miscellaneous expenses, claimed are comparable to what persons of ordinary 

prudence would require under similar circumstances. Regardless of the annuitant's accustomed 

standard of living, the Board stated that it would apply a reasonable person test, but that discrete 

circumstances particular to individual situations must be taken into account. Total monthly 

"expenses" therefore, are calculated by adding ordinary and necessary monthly enumerated and 

miscellaneous expenses plus $50.00 for emergency expenses, as allowed by the Guidelines. That 

figure is then subtracted from total monthly income to ascertain the income/expense margin. 
Once that margin is established, the Board will consider the appellant's total financial 

condition to determine whether repayment will cause financial hardship because the annuitant 

needs substantially all of his current income and liquid assets to meet current ordinary and 

necessary living expenses and liabilities. The case was remanded to allow the appellant a further 

opportunity to submit evidence of financial hardship. 

In her concurring opinion, the Vice Chairman agreed generally with the reasonable person 

test, but expressed the view that in applying the test, one factor should be the person's usual 

standard of living and how long he has maintained it, even if he increased or acquired it as a 

result of the overpayment. 

Aguon v. OPM, SF831M8610745 (December 8, 1989) 

In this case, the Board examined 5 CFR 831.1403, which provides that regardless of the 

annuitant's financial circumstances, if he "relinquished a valuable right or changed positions for 

the worse" because of the notice that payment would be made or the payment itself, he would be 

entitled to a waiver. The Board adopted the criteria OPM set forth in its Guidelines to establish 

detrimental reliance: The change or relinquishment must be directly caused by the overpayment 

or notice that it would be made; it must be detrimental to the overpayment recipient; it must be 

material (although not necessarily "major"); and it must be irrevocable. The Board found that to 

ensure that appellants do not profit from waiver on this basis, the waiver is appropriate only in 

an amount equivalent to the loss the annuitant's relinquishment caused. The appellant must 

prove his entitlement under these criteria by substantial evidence. Here, the Board found that it 

would be appropriate to provide the appellant a further opportunity on remand to address this issue 

with greater specificity. 

The Board next considered the appellant's argument that recovery would be unconscionable. 

Noting that OPM interprets unconscionability as a separate factor warranting waiver, the Board 

overruled, to the extent necessary, its prior cases suggesting that unconscionability is not separate 

from financial hardship or detrimental reliance. OPM's Guidelines list as examples of 

unconscionability "egregious errors and/or delays by OPM." The Board defined the term according to 

its plain meaning, as "going beyond the bounds of what is customary or reasonable; ridiculously or 

unjustly excessive; inordinate...contrary to good conscience; inequitable," and emphasized that it is a 

high standard, so that waiver on the basis of unconscionability should be granted only in exceptional 

circumstances. The Board held that it would look at the "totality of-the-circumstances" to 

determine whether recovery would be unconscionable in any given case. The Board listed as 

unconscionable cases where OPM's delay in adjusting an annuity was exceptionally lengthy; OPM 

failed to respond within a reasonable time to an inquiry; OPM failed to act expeditiously to adjust an 

annuity in the face of specific notice; and/or OPM was otherwise grossly negligent in handling the 

case. 

The Board further ruled that principles of equity require that consideration be given, in this 

category of cases, to whether the appellant was misinformed by OPM and to the annuitant's personal 

limitations. Under the Guidelines, unconscionability may be presumed where OPM failed to respond 

to a request for waiver or reconsideration within four years of the request, and that portion of the 

overpayment that accrued more than three years prior to the date of the initial overpayment notice, 

as well as that portion of an overpayment that cannot be recovered (without financial hardship) within 

six years of the date of first collection, will also be waived on the ground of unconscionability. The 

Board noted, in this regard, OPM's access to much information about annuitants, and stated 

that lengthy delays accompanied by other circumstances could also lead to a waiver. The Board 

ordered that, on remand, the appellant should be provided an opportunity to clarify the state of 

his health and to argue that, alone or in combination with other factors, it justifies a waiver on 

the basis of unconscionability. 
In her concurring opinion, the Vice Chairman stated that, in the future, where there is a 

without-fault debtor who experiences a delay as lengthy as the 7-1/2 years here, she would find the 

annuitant entitled to complete waiver. She also suggested that the two agencies involved, OPM and 

the Social Security Administration, devise a system to ensure coordination and more expeditious 

processing. 

Newcomb v. OPM, SF831M8610210 (December 8, 1989) 

The appellant argued that his continued receipt of an unreduced annuity beyond the age at 

which he was eligible for social security benefits caused him to believe that he was not yet eligible for 

such benefits, that he did not apply for them, and that he thus relinquished a valuable right The 

Board noted that under the Policy Guidelines, to qualify the annuitant for waiver, the 

relinquishment must be one that he is unable to recover. The Board adopted and applied the 

provisions of the Guidelines and held that the appellant's continued receipt of unreduced annuity 

payments did not cause him to relinquish a valuable right As the Board explained, the earlier one 

applies for social security benefits, the greater the reduction in those benefits, so that, actuarially, 

on average a person will receive the same total benefit over his lifetime irrespective of when he 

applies for it Thus, the benefit was not irrevocably lost. The Board further noted that waiver on 

this basis would also be inconsistent with principles of equitable estoppel and detrimental 

reliance because there was no evidence that OPM intended the appellant to act on its silence as 

to his eligibility for social security benefits. Nor is there a requirement that OPM or even the 

Social Security Administration notify a person when he becomes eligible for social security 

benefits, and there is no allegation that the appellant was misinformed about 5 U.S.C. 8332(j) or 

that his inquiries on that subject were ignored. 

With respect to the appellant's argument on unconscionability, the Board found that 

because OPM distinguishes between delays of four years or more and those less than four years, 

and its interpretation is of its own regulations, the Board would defer to the OPM interpretation 

because it is not plainly erroneous or inconsistent with the law or regulation on which it is 

based. Although the Guidelines do not preclude waiver where the delay is less than four years, 

the appellant did not show why the delay here warranted an exception to the general rule. The 

Board, therefore, affirmed the initial decision as modified by its Opinion and Order. 

In her dissenting opinion, the Vice Chairman stated that she would have found that the 

appellant relinquished a valuable right and that OPM's actuarial argument, accepted by the Board, 

is only valid for those appellants who live as long as the statistics indicate they will. Because that is 

not necessarily true in any individual case, she would have found that the appellant was entitled 

to waiver. She suggested that OPM could eliminate the risk of benefits lost to the appellant by 

devising a recovery scheme tied to each individual's actuarial lifespan. She also expressed concern 

over OPM's lengthy delay in adjusting the annuity to reflect the appellant's eligibility for social 

security benefits and its failure to notify him of the possible change in amount of his annuity to 

reflect this eligibility. Because OPM is charged by Congress with responsibility for the 

administration of the retirement system, she stated her belief that it should devise a procedure to 

assure better coordination between the agencies. Although notification to the appellant at a 

specific time is not required, it would comport with the principles of good administration. 

In his concurring opinion, the Member stated that he shared the Vice Chairman's concern 

over the lengthy delays experienced by the appellants in these cases and her view that OPM and 

SSA could better coordinate to avoid such delays in the future. 
Slater v. OPM, AT831M8610577 (December 8, 1989) 

In this decision, the Board rejected the appellant's argument that he was entitled to retain 

an annuity overpayment in its entirety because OPM did not specifically inform him that he had 

been overpaid until more than six years after the debt began to accrue. The appellant relied on 

OPM's "six year rule," which precludes recovery of an overpayment unless a complaint is filed 

within six years of the date on which the right of legal action accrues. The Board found that the 

rule applies to voluntary repayment, and here, OPM intends to collect the overpayment through 

offset of the appellant's annuity payments. 

The Board found that the appellant was without fault under the Policy Guidelines' "prompt 

notification" rule, which provides that an individual who accepts an overpayment, even one he 

knows is in error, will be found to be without fault where he promptly notifies OPM of the error. 

Because the appellant was without fault, the Board went on to determine whether he was 

entitled to a waiver and found that he was entitled to a partial waiver under the three year "age of 

debt" rule. Under that rule, it is generally unconscionable to collect that portion of an 

overpayment that accrued more than three years prior to the initial overpayment notice from 

OPM. The Board found, however, that the Guidelines also contain a "set aside rule," under which 

it will not be found unconscionable to collect money that an annuitant receives when he 

suspected or knew that the payment was erroneous, because he is expected to set the overpaid 

money aside for recoupment The Board adopted both rules as reasonable and appropriate. 

Noting that the appellant acknowledged that after receiving the April 1983 notice, he began 

setting money aside to cover the anticipated overpayment, the Board concluded that it would not 

be unconscionable to require repayment of that portion of the debt that arose after the appellant 

began receiving social security benefits. It found him entitled to waiver of the portion of the debt 

that accrued prior to the appellant's receipt of those benefits, however, because there is no 

indication that he knew or suspected that the amount of his annuity was wrong before then. 

The Board rejected the appellant's argument that he was entitled to a waiver because he had 

incurred an increased tax liability as a result of the overpayments. The Board found that, even 

assuming that the appellant was correct that his total tax burden increased, this would not 

constitute detrimental reliance because OPM did not mislead the appellant or induce him to 

change his position. Nor did the increased tax burden constitute unconscionability, the Board 

found, citing the Federal Circuit's decision in Day v. OPM. Finally, the Board found that the 

appellant was not entitled to waiver on the basis of OPM's delays because he was aware that his 

annuity should have been reduced as of the time he began receiving social security benefits, he 

set aside money from that point, and recovery of the part of the debt that accrued prior to that 

time was waived. As the Board explained, because the delays did not have a substantial adverse 

impact on the appellant, recovery would not be unconscionable. 

The Vice Chairman issued a separate decision, concurring in part and dissenting in part She 

agreed with all but the portion of the decision finding that the appellant was not entitled to 

waiver because he could not show a substantial adverse impact on himself. In her view, adverse 

impact should only be one factor for consideration in the totality of the circumstances test for 

unconscionability, and not the determining factor. She would have granted waiver because the 

appellant acted in a very responsible manner, while OPM, in its delays, acted negligently. 

Derrico v. OPM, DC831M8610440 (December 8, 1989) 

With respect to claims of financial hardship, the Board held that administrative judges 

should request clarifying information where OPM has not, or where the administrative judge 

questions the propriety of the claimed expenses or income. Because the annuitant is required to 

swear to the accuracy of the information provided on the financial resources questionnaire, 

however, the Board held that unless OPM has questioned the information or it appears 

unreasonable or incomplete on its face, the appellant should not be required to substantiate, his 

income or expenses. The case was remanded to allow the parties to supplement the record on the 

issue of financial hardship and for adjudication in accordance with the guidance of Fusco.
The Board also addressed its authority to adjust the repayment schedule. It noted that 

adjustment is not an alternative to waiver, that if a finding of financial hardship can be made, 

then the appellant is entitled to a waiver. Only if such a finding of financial hardship cannot be 

made may the administrative judge consider whether the schedule should be adjusted as a result 

of financial hardship. Because 5 CFR 831.1401 places the issue of adjustment before OPM in 

every case, the Board found that the issue was properly before the Board in every case as well, 

even in the absence of a specific request to OPM for adjustment Citing the Guidelines, the Board 

stated that the determination of financial hardship that must be made to entitle a party to 

adjustment is "not as strict" as that necessary to establish entitlement to waiver. 

Finally, the Board noted OPM's "length-of-recovery" rule, under which a recovery schedule is 

generally limited to six years, and the amount that cannot be equitably collected in that time is 

waived. The Board agreed with and adopted that rule. It held, however, that under the 

Guidelines, a recovery schedule may be longer than six years if the appellant refuses to submit 

financial information to establish financial hardship. The Board ordered that this rule should be 

applied by the administrative judge on remand. 

The Vice Chairman issued a concurring opinion to express her concern about the length of 

the delay between the Social Security Administration's notice to OPM that the appellant was 

eligible for benefits and OPM's action to adjust his annuity. She stated that in the future, she 

would find such delays excessive and constituting a basis for waiver. 

Markun v. OPM, DC08318910240 (March 29, 1990) 

The issue before the Board in this case was whether an annuitant is entitled to have his 

annuity calculated on the basis of the salary he was paid at the time of his retirement or on the 

basis of the salary level he would have received but for the pay cap imposed by 5 U.S.C. 5308. 

The Board found that under 5 U.S.C. 8415, an annuity is computed at 1 percent of "average pay" 

multiplied by the individual's total service. Because average pay is defined as basic pay, and 

basic pay is the rate of pay fixed by law, including the pay cap, that cap must be considered in 

setting the annuity rate. 

Moreover, the Board noted that deductions for the annuity were made as a percentage of the 

appellant's capped salary throughout his tenure, not of the higher salary he would have received 

in the absence of 5 U.S.C. 5308. 

Noveloso v. OPM, SE08318910676 (May 29, 1990) 

In this case, the Board considered the distinction between "covered" and "creditable" service. 

Under 5 U.S.C. 8333, to qualify for an annuity, an employee must complete at least five years of 

creditable civilian service and must have served at least one of the last two years of Federal 

service in a covered position. Almost all Federal service is creditable toward service requirements, 

but covered service is more limited, including only those employees who are "subject to" the Civil 

Service Retirement Act and must deposit part of their pay into the Civil Service Retirement and 

Disability Fund. An "employee" is defined in 5 U.S.C. 8331. All employees are covered by the 

retirement system except those who are specifically excluded by law or by OPM regulation. 

Temporary or intermittent employees are among those excluded from retirement coverage by 5 

CFR 831.201(a), but that exclusion does not in any way affect the creditability of an employee's 

service. The Board, therefore, overruled earlier decisions that implied that temporary or indefinite 

appointments do not constitute creditable service. 

Settlements 

Miller v. Army, PH075287A0087 (November 28, 1989) 

The Board held that where a hearing is requested in an appeal that was settled before 

presentation of the evidence "and when a truly informed finding cannot be made concerning the 

appellant's entitlement to an attorney fee award, an administrative judge should grant the 

appellant's request for a hearing on the fee award." In so ruling, the Board noted that the 

statement to the contrary in its earlier decision in Allen v. USPS presupposes a developed record, 
and so was inapplicable here. The Board then found that the evidence of record in this case did 

not contain sufficient information to make a reasoned finding on whether the appellant was 

substantially innocent of the charge against her, because resolution of the issues involved in 

such a determination would require decisions on credibility. Further, because demeanor is an 

important component in credibility determinations, a hearing would be necessary. The Board 

noted that although requiring a hearing on the fees issue seemed inconsistent with the speedy 

resolution of disputes fostered by settlement, it was not inconsistent with all the purposes of 

settlement. Moreover, a policy precluding full litigation of the fee issue could discourage 

settlement. Finally, the Board encouraged administrative judges to remind parties of the 

advantages of settling the fee issue when the merits issues are settled, noting that parties may 

have to establish entitlement to fees on the basis of the existing record since there is no absolute 

right to a hearing on the fee issue. 

In a separate opinion, the Chairman agreed that the appellant was the prevailing party but 

dissented from the remand for a hearing on the attorney fee issue. In his view, the appellant gave 

up the right to a hearing by agreeing to settle, and the majority opinion allows the fee proceeding 

to become the principal litigation, contrary to the Supreme Court's admonition in Hensley v. 

Eckerhart. 

Futrell v. Navy, PH075286A0549 (December 18, 1989) 

This case raised a question as to the standard to be applied in determining whether attorney 

fees should be awarded. The case, which included an allegation of discrimination, settled prior to 

the issuance of a decision on the merits. The Board held that where the appellant's pleadings, 

supplemented if necessary by the record as it existed at the time of the Board's decision, 

disclosed facts that, if proven, could form a prima facie case of discrimination, then the appellant 

was entitled to an award of attorney fees in accordance with the more liberal civil rights standard 

of 5 U.S.C. 7701(g)(2). 

Byron v. Navy, SE075285CO276 (December 29, 1989) 

The appellant filed a petition for enforcement of a settlement agreement, asserting that the 

agency's failure to expunge his records as required by the agreement led to an investigation that 

caused his security clearance to be revoked. The Board noted that the issue was not whether the 

agency was in compliance, but whether its prior noncompliance led to specific harmful results, 

i.e., the loss of the appellant's security clearance. It found that the appellant did not meet his 

burden of proof, but that he presented evidence "strongly suggesting a possible causal 

connection," which the agency has the burden to rebut, and remanded the case for further 

findings. The Board stated that if the appellant carried his burden on remand, it would be 

necessary for the administrative judge to fashion a remedy for the breach. Although its 

enforcement authority is broad, the Board noted that, under its case law, it would be without 

authority to order the appellant's security clearance reinstated or to order him restored to his job 

without it The Board further noted that its authority to modify the terms of an order or 

agreement where necessary to fashion a remedy for the harm to a party resulting from the other 

party's noncompliance would allow the Board to order the agency to place the appellant in 

another position as equivalent as possible to the position to which it agreed to restore him. 

Danelishen v. USPS, AT07528910492 (February 6, 1990) 

The appellant resigned from his job as a result of the settlement of a grievance over his 

removal and appealed to the Board, alleging that the resignation was involuntary because the 

settlement was coerced. The administrative judge dismissed on grounds that the settlement 

agreement had not been entered into the record. The Board agreed that it had no authority to 

enforce or invalidate a settlement agreement that had not been entered into the record of a Board 

appeal. It found, however, that it could consider whether the resignation resulting from it was 

involuntary, as the appellant claimed. 
Wohschall v. Air Force, SF07528910359 (February 16, 1990) 

The appellant grieved his removal and the parties ultimately settled the grievance for, inter 

alia, the appellant's agreement to resign pursuant to the settlement agreement He later appealed 

to the Board. The Board found that it lacked jurisdiction over the claim that the resignation 

submitted pursuant to the agreement was involuntary. As the Board explained, the appellant 

could have chosen not to submit his resignation once he believed that the agency was not 

complying with the agreement The Board distinguished cases over which it had taken 

jurisdiction, where the appellant was unaware of an agency breach at the time he submitted his 

resignation pursuant to a settlement agreement. The Board dismissed the appeal. 

Miller v. DOD, DE07528810290 (May 24, 1990) 

The parties settled the appellant's appeal from his removal. The agreement provided, inter 

alia, that the appellant would be placed on administrative leave for one year and resign 

thereafter. After seeking advice from the Comptroller General, the Board found that there is no 

general statutory authorization for excused absence such as administrative leave, and although 

OPM has placed within agencies' discretion the authorization of administrative leave, OPM has 

stated that they may, by administrative regulation, place any limitations or restrictions they feel 

are needed on the use of such leave. The Comptroller General's decisions on this subject have 

consistently stated that such discretion is for brief periods only, and that where the absence is 

for a lengthy period, excused absence is not appropriate unless the absence is in connection with 

furthering a function of the agency. The Comptroller General stated that here the agency's 

mission would not be furthered by the use of administrative leave as agreed to in the settlement 

because the agency would be expending appropriated funds without receiving any benefits in 

return. Absent evidence to the contrary, the Board found that the parties were mutually 

mistaken as to the lawfulness of the provision at issue and, therefore, set aside the agreement 

The initial decision was vacated, and the case was remanded for reinstatement of the appeal. The 

Board noted that the parties were not thereby precluded from further settlement attempts, 

including retrospective payment contemplated under the Back Pay Act. 

Miscellaneous Cases 

Berkey v. USPS, SE07528610203 (October 2, 1989) 

The Board determined that it would not apply collateral estoppel to arbitrators' decisions on 

handicap discrimination in Postal Service cases. Because the Postal Service is not subject to 5 

U.S.C. 7121, the Board distinguished its decision in Robinson v. DHHS. 

Citing the Supreme Court's decision in Alexander v. Gardner-Denver Co., the Board held that 

absent a statutory scheme that forecloses an appellant's right to a trial de novo before the Board 

on a discrimination claim, he retains that right. The Board, therefore, would not give collateral 

estoppel effect to an arbitrator's decision on the issue of discrimination. 

Dennison v. OPM, CH08318710189 (November 21, 1989) 

The Board found it was appropriate to extend the applicability of the Federal Circuit's 

decision in French v. OPM beyond disability cases to an annuity overpayment case like this 

because the appellant was represented only by his wife, the record indicated that his condition 

caused confusion and inability to comprehend these proceedings, and the same kind of 

fundamental unfairness, as in French, might result where the appellant was required to show 

financial hardship or unconscionability. 
Marbrey v. Justice, SF07528910381/0687 (May 2, 1990) 

In this adverse action appeal, the Board determined that it would not be appropriate to 

apply the French decision to such cases. It noted that French involved a disability retirement 

appeal. Here, unlike a retirement case, the appellant did not bear the burden of proof, the 

appellant did not claim that he suffered from a mental problem, the record did not contain 

evidence that he did, and the appellant did not ask for assistance in obtaining representation. 

Moreover, the Federal Circuit did not indicate that its French ruling should be extended beyond 

the context in which it was made. The Board decided, therefore, that it should not extend the 

French rule to this situation. 

Denny v. Navy, SF03538810389 (January 19, 1990) 

On review of an initial decision concerning the right to immediate restoration of Office of 

Workers' Compensation Program benefits following termination of those benefits, the Board set 

forth the burden of proof of entitlement to restoration. The appellant must show that the Board 

has jurisdiction by proving that he had a compensable injury or recurrence, that his OWCP 

benefits terminated within one year of the date on which they began based on full recovery from 

the injury, and that his separation was substantially related to his injury. Once the appellant 

has met his burden, the agency must show that it complied with the regulations. A claim that 

full recovery did not occur within one year is a defense to be raised in meeting this burden, as is 

the argument that the request for restoration was not timely made. 

Burrough v. TVA & OPM, SL03518810330 (January 19, 1990) 

The Board noted that under the Dual Compensation Act, a retired member of the military is 

not generally considered a preference-eligible for RIF purposes if his service includes "twenty or 

more years of full-time active service, regardless of when performed but not including periods of 

active duty for training." It found that the legislative history of the Act showed that it was 

intended to give a "fresh start" in civilian employment to retired members of the military, without 

built-in seniority. Under OPM's guidance, even if an employee had not served 20 full years in the 

military but had been credited with 20 years of service for pension purposes, he would not be 

considered a preference-eligible for RIF purposes. The Board found that OPM's interpretation was 

consistent with the legislative history and that its interpretation was entitled to deference. 

Therefore, the Board deferred to OPM. 

Dunbar v. Navy, SF07528910445 (February 27, 1990) 

On petition for review, the Board reaffirmed its rule that a person is bound by the acts of his 

representative, but adopted the corollary rule used by courts that the attorney's actions should 

not be attributed to the client where the client shows that his own diligent efforts to prosecute 

the suit were, without his knowledge,thwarted by his attorney's deceptions and negligence. 

Applying that rule to this case, the Board found that the appellant's statement and the 

affidavit of his attorney showed that the appellant checked repeatedly on the status of the case, 

called to remind the attorney of the filing deadline, visited the office in an unsuccessful attempt 

to mail the appeal himself; and was eventually told that it had been timely mailed. The Board 

found that the attorney's secretary, although assuring counsel that the appeal was mailed, failed 

to mail it. Under the circumstances, the attorney misled the appellant, albeit unintentionally, 

and the appellant was reasonably unaware of the deception. The Board, therefore, found good 

cause for the untimeliness and remanded the appeal for adjudication. 
Appendix B 

Significant Board Decisions 

Original Jurisdiction Cases 

Significant original jurisdiction cases decided by the Board during Fiscal Year 1990 included the 

following: 

Hatch Act Cases 

Special Counsel v. Brondyk, 42 M.S.P.R 333 (1989) 

The Board held that a local government employee knowingly violated the provision of the Hatch 

Act making it unlawful for a covered employee to be a candidate for elective office in a partisan election. 

In reaching this conclusion, the Board found that the employee was covered by the Hatch Act because 

his full-time position as executive director of a county department of emergency services was financed 

by the Federal government and was his principal employment The Board then determined that the 

employee's running as a Republican candidate for the office of county sheriff warranted his removal 

where he persisted in running for office despite the fact that the Office of Special Counsel had warned 

him not to run and a state official had advised him to consult with an attorney to ensure that he was 

not violating the Hatch Act, but he had failed to do so. 

Special Counsel v. Fergus, 44 M.S.P.R 440 (1990) 

The Board determined that the executive director of the Eastgate Development and 

Transportation Agency was an employee covered under the Hatch Act because his principal 

employment was in connection with an activity financed by Federal funds. The Board approved a 

settlement that precluded the employee from seeking public employment for a period of 18 months. 

The Board noted that removal would have been the appropriate penalty had the employee not 

resigned pursuant to the settlement agreement 

Special Counsel v. Gallagher, et al., 44 M.S.P.R. 57 (1990) 

The Special Counsel charged the three respondents with violating those provisions of the Hatch 

Act that apply to certain state and local government employees. Specifically, the Special Counsel 

alleged that the respondents violated the Hatch Act by coercing other employees to make political 

contributions and, in addition, that respondent Gallagher violated the Hatch Act by running for 

elective office. The Board found that the respondents violated the Hatch Act and that removal 

was the appropriate penalty. In so finding, the Board noted that the primary factors to be 

considered in determining whether removal for a Hatch Act violation is appropriate are those 

that bear on the seriousness of the violation.

Special Counsel v. Majure, 43 M.S.P.R. 511 (1990) 

The Special Counsel charged a postal employee with engaging in prohibited political activity 

under the Hatch Act. The Board held that the penalty of removal was not warranted for the employee's successful independent candidacy for mayoral office, and it approved a settlement agreement 

between the parties under which the employee would receive a 30-day suspension without pay and 

proceed with a previously filed application for voluntary retirement 
Special Counsel v. Carter, HQ12168910043 (July 2, 1990)

The Special Counsel filed a disciplinary action charging the respondent with engaging in 

prohibited political activity in violation of the Hatch Act during his employment as executive 

director of the Nashville Housing Authority. The Board held that the term "principal 

employment" as used in the Hatch Act to define those state or local officers and employees 

covered by the Hatch Act means principal or primary employment regardless of the public or 

private nature of the employment. The Board concluded that the respondent was covered by, 

and had violated, the Hatch Act and restricted him from public employment in the state for 18 

months. 

Special Counsel Complaints for Disciplinary Action 

Special Counsel v. Doyle, 42 M.S.P.R. 376 (1989) 

The Special Counsel filed a complaint for disciplinary action against a supervisory employee 

based on three counts of alleged sexual harassment of female employees. The Administrative Law 

Judge sustained only one of the three counts. The Special Counsel argued that Count Three 

should have been sustained. The Board found that because the charge in Count Three involved 

only a single occurrence directed toward a single individual, it did not constitute severe, 

pervasive, and frequent harassment sufficient to constitute hostile environment harassment. The 

Board noted the absence of evidence of serious psychological damage to the female employee or 

unreasonable interference with her work following her supervisor's sexual advances. The Board 

adopted the Administrative Law Judge's recommendation on all three counts, but modified the 

penalty from a fine and a 3-year debarment from Federal employment to just debarment. The 

reason for the modification of the penalty was the Board's determination that section 1207 of the 

Civil Service Reform Act, now codified as 5 U.S.C. 1215(a)(3), which defines the Board's 

sanctioning authority, only allows the imposition of penalties alternatively rather than 

cumulatively, and that this provision does not permit the Board to impose both a fine and 

debarment as penalties for sexual harassment. 

Special Counsel v. McDonald 42 M.S.P.R. 624 (1989) 

The Special Counsel charged the respondent with violating 5 U.S.C. 2302(b)(8) by 

recommending the termination of one employee and the suspension and removal of another in 

retaliation for whistleblowing. The Board's Administrative Law Judge found the charges 

proved and recommended that the respondent be removed and debarred from Federal 

employment for three years. The Board sustained the charge, but determined that it could only 

impose one of the recommended penalties in light of its decision in Special Counsel v. Doyle, because 

the statute provides alternative, not cumulative, sanctions. The Board concluded that removal was 

the appropriate penalty. (NOTE: This action commenced prior to the effective date of the 

Whistleblower Protection Act of 1989 and, therefore, was not covered by the provisions of the Act.) 

Special Counsel v. Doyle, McDonald Endsley, Floersheim and Betten, 45 M.S.P.R. 43 (1990) 

The Special Counsel requested reconsideration of the Board's holding in Special Counsel v. Doyle and 

Special Counsel v. McDonald (discussed above) that it lacked authority to impose penalties 

cumulatively. The other three respondents had entered into settlement agreements involving more 

than one penalty. After reviewing the legislative history of section 1207 of the Civil Service Reform 

Act, now codified as 5 U.S.C. 1215(a)(3), the Board concluded that it lacked authority to approve the 

dual penalty to which the parties had agreed in the settlements. The Board also declined to 

reconsider its decisions in Special Counsel v. Doyle and Special Counsel v. McDonald. 
Special Counsel v. Hove, HQ12169010003 (July 6, 1990) 

The Special Counsel brought a disciplinary action, charging that the respondent violated 

nepotism rules limiting the employment of relatives. The parties agreed to settle the case. The 

Board found that the agreed-upon penalty of $750.00 was within the bounds of 

reasonableness and adopted the agreement. 

Proposed Actions Against Administrative Law Judges 

In re Sannier, et al., HQ075218910037 (July 2, 1990) 

Three administrative law judges alleged that their employing agency had effectively removed them 

by taking punitive measures against their office because of its low productivity. The Board dismissed 

the action, finding thatnone of the actions allegedly taken constituted interference with the decisional 

independence of the administrative law judges. The Board also noted that it was without authority to 

discipline the individuals named by the administrative law judges or to restore the hearing sites and 

increase the staff in the office in which they work. 

Review of Regulations 

National Treasury Employees Union v. Office of Personnel Management, HQ12059010008 (July 3, 

1990)

The National Treasury Employees Union (NTEU) asked the Board to review the validity of a 

regulation relating to whether an employee's representative may participate in OPM on-site audits in 

the course of a classification appeal. The NTEU contended that the regulation conflicted with 5 U.S.0 

7114(a)(2)(A), which sets forth the rights and duties of a labor organization that has been accorded 

exclusive recognition as the representative of employees in a unit The Board held that this particular 

issue could be determined in another forum and that the NTEU failed to establish that a 

prohibited personnel practice was likely to occur because of the regulation at issue. The Board also 

noted that striking down the implementation of regulations can be an extremely intrusive remedy.
Appendix C 

Significant Litigation 

Significant litigation involving the Board during Fiscal Year 1990 included the 

following: 

OPM-Initiated Litigation 

Horner v. Hollander and MSPB, 895 F.2d 759 (Fed. Cir. 1990) 

Mrs. Hollander, the former spouse of an employee who had died while on paid leave, applied for 

a survivor annuity under the Civil Service Retirement Spouse Equity Act of 1984 (CSRSEA), as 

amended by the Federal Employees Benefits Improvement Act of 1986, under which a former 

employee's spouse may qualify for survivor benefits even though the employee had not retired, 

provided the employee died after becoming "eligible to retire" but before May 7, 1985. Mrs. 

Hollander contended that her spouse had been eligible for disability retirement when he died, but 

OPM denied her application because it interpreted the term "eligible to retire" to cover only those 

employees who qualified for age and service retirement and not those eligible to retire on the basis 

of disability. The Board reversed OPM's reconsideration decision, holding that OPM's 

interpretation of the statute was contrary to the plain meaning and purpose of the CSRSEA and 

remanded the case to OPM to determine whether Mr. Hollander had met the disability retirement 

requirements, and, if so, whether Mrs. Hollander met the statutory conditions for a survivor 

annuity. 

On review, the Federal Circuit agreed with the Board that the plain meaning of the term 

"eligible to retire" is "membership in the class of those meeting the requirements for entitlement to 

retirement benefits" and not merely those already entitled. The court noted that, while deference 

is due an agency charged with administering a statute, it must reject an interpretation that is 

inconsistent with the statutory mandate or that frustrates the policy Congress sought to 

implement. The court concluded that the term "eligible to retire" includes those who were eligible 

for disability retirement prior to death and affirmed the Board's decision. 

Newman v. Teigeler and MSPB, 898 F.2d 1574 (Fed. Cir. 1990) 

The court affirmed the Board's decision reversing the denial by OPM of the petitioner's 

application for a survivor annuity. The court agreed with the Board that Teigeler, the former spouse 

of a deceased annuitant, met all of the requirements for a survivor annuity set forth in the Civil 

Service Retirement Spouse Equity Act of 1984, as amended by the Federal Employees Benefits 

Improvement Act of 1986. OPM sought review of the Board's ruling that the "plain meaning" of the 

statute required finding that a provision denying an annuity to a former spouse who remarried 

prior to attaining the age of 55 applied only to those who remarried "after September 14, 1978," 

and, therefore, was not applicable to the petitioner, who remarried before that date. The court 

found that the statutory language was clear and unambiguous and that the legislative history 

revealed nothing to indicate the Congress intended anything other than the plain meaning of the 

words. The court rejected OPM's "absurd results" argument because it found the literal reading 

furthered congressional intent, and it declined to defer to OPM's interpretation, which it found to 

be inconsistent with the statute. 
Newman v. Lynch and MSPB, 897 F.2d 1144 (Fed Cir. 1990) (Petition for rehearing en banc pending) 

The court reversed the Board's decision declining to reconsider, at the request of OPM, a ruling 

that the petitioner had articulated a reasonable accommodation of his handicap. Under 5 U.S.C. 

7703(d), OPM may seek reconsideration of a Board decision where it determines that the Board has 

made an error in the interpretation of civil service law that will have a substantial impact In Lynch, 

the Board held that OPM was not entitled to reconsideration of a determination under the 

Rehabilitation Act because the Act is a discrimination statute and not a "civil service law" for purposes 

of 5 U.S.C. 7703(d). The court disagreed, holding that the Board does not have authority to refuse 

reconsideration under section 7703(d) because it disagrees with the discretionary determinations 

that OPM is required to make before filing a petition. In the court's view, only the court can review 

OPM's determination. In vacating and remanding the case for the Board to consider OPM's petition, 

the court did not address the contentions of the respondents and amid, including the Equal 

Employment Opportunity Commission, that matters of discrimination law are outside the scope of 

the court's jurisdiction under section 7703(d). 

Special Counsel-Related Litigation 

State of Connecticut v. MSPB, Docket No. 89-6176 (2nd Cir. 1990) 

The court affirmed the decision of the U.S. District Court for the District of Connecticut that 

upheld the Board's finding of Hatch Act violations by two state employees and its order that Federal 

funds be withheld from the State of Connecticut. 
Appendix D 

Special Studies 

The following summaries of special study reports issued by the Board during Fiscal Year 1990 

highlight the findings and recommendations in those studies. The reports summarized include 

those comprising the Board's annual oversight review of the significant actions of the Office of 

Personnel Management and studies of other merit systems issues. 

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

a. OPM's Classification and Qualifications Systems: A Renewed Emphasis, A Changing Perspective 

There are over two million civilian employees in the Federal civil service. The ability of these 

employees to carry out the work of the Government successfully is directly related to the 

effectiveness of the Government's personnel systems. When these systems work properly, the right 

people gel put into the right jobs in a timely way. Although the foundation for these personnel 

systems is found in law, their practical application is driven by the policy and procedures 

established by OPM. This report examined OPM's management of two of the Government's most 

important personnel systems, those that control the classification of positions and the 

determination of applicant qualifications. 

The report concluded that classification standards are not as current as they should be and that 

the resources currently being devoted to producing classification standards are unlikely to correct 

that situation. The situation was aggravated by an earlier OPM moratorium on issuing new 

classification standards. During that moratorium, OPM did not achieve any substantial 

improvement in the classification system's design. OPM's recent emphasis on the use of generic 

classification standards has received a mixed reception from agencies, while its generic 

qualifications standards have been well received. The qualifications rating system, as a whole, 

appears to be functioning smoothly and effectively. 

b. Attracting and Selecting Quality Applicants for Federal Employment 

This report reviewed the initiatives begun by OPM during Fiscal Year 1988 to improve the 

Government's ability to attract high-quality applicants for Federal employment It also assessed 

recent proposals to modify the selection process for entry-level jobs in Professional and 

Administrative Career (PAC) positions. 

In general, the Board commended OPM for taking the lead in efforts to revitalize the Federal 

recruitment process. Nevertheless, the Board noted several obstacles that still must be dealt with 

if the Federal Government is to be viewed as an employer of choice by more individuals. 

During Fiscal Year 1988, OPM developed several new proposals designed to streamline and 

improve the selection process for entry-level Administrative Careers With America (ACWA -

formerly termed PAC) positions. In the course of its review, the Board found that these proposals 

have been generally well received by Federal agencies because they have the potential to increase 

the timeliness of the selection process. In addition, the combined written examination and 

Individual Achievement Record offer a formal selection process for many positions where none has 

existed for several years. 
Based on the available research, the Board concluded that the relationship between college grades 

and job success is not strong enough to justify the use of an across-the-board direct-hire authority 

based upon grade point averages when tools possessing much greater validity exist If the 

Government is unable to recruit or hire qualified persons in certain occupations using the more valid 

selection instruments, however, MSPB believes it would be appropriate for OPM to grant agencies 

direct-hire authority for these occupations. If a direct-hire authority is granted, agencies should 

consider using a combination of alternative selection tools that might include GPA, although GPA 

should never be used as the sole criterion for selection. 

The Board recommended that OPM continue its work to streamline the process by which 

applicants are certified as eligible for administrative and professional positions using the occupationspecific examinations and the Individual Achievement Record. For maximum effectiveness, OPM 

should make it as easy as possible for an applicant to arrange to take an exam in a timely manner with 

results available shortly thereafter.

2. MERIT SYSTEMS STUDIES. 

a. Delegation and Decentralization: Personnel Management Simplification Efforts in the 

Federal Government 

This MSPB study of efforts by OPM and the 21 largest Government departments and agencies to 

delegate human resources decisions was carried out through a special survey. In addition, the Board 

surveyed over 3,500 people in the Federal personnel occupations and reviewed policy issuances for 

the study. 

The study concluded that there was broad support for the increased decentralization and 

delegation of personnel authorities and evidence that the process was increasing effectiveness of 

personnel decisions. Agencies were particularly pleased with OPM's delegation of recruiting and 

examining authority, which agencies saw as providing a higher quality candidate in a shorter period 

of time than before. Most agencies, however, were not pursuing additional delegations of recruiting 

authority, nor were they planning additional on-campus recruiting for college graduates. Within 

agencies, additional delegations of authorities to line managers were being contemplated. 

The study concluded that increased delegation and decentralization of Federal personnel 

decisions should be encouraged. In a world in which few "one size fits all" solutions are effective, 

maximum flexibility, with reasonable safeguards, is desirable. The study recommended that OPM 

put more emphasis on its own evaluation programs as well as urging agencies to perform more 

oversight to ensure continued adherence to merit principles. 

b. The Senior Executive Service: Views of Former Federal Executives 

This report presented the results of the largest survey ever conducted of former members of the 

SES. It began by examining the reasons they gave for leaving Government. Inadequate 

compensation was the most frequently cited reason. Job dissatisfaction also played an important 

role. More than 40 percent of the former executives reported that they left the Service, in part, 

because they did not enjoy the work any more and, in part, because their skills were not being used 

appropriately. 

The report also presented the views of former executives regarding the operation of the SES. 

Seventy percent believed that the Government had not established an appropriate SES 

compensation system. In addition, more than 40 percent believed that nonmonetary statutory 

objectives central to the operation of the SES—those aimed at ensuring against improper political 

interference and arbitrary and capricious actions were also not being met. The survey revealed that 

substantial percentages of former senior executives held the skills and abilities of noncareer 

executives in low regard. 
The report recommended that agencies undertake efforts to decrease the nonmonetary causes of 

SES dissatisfaction. Agencies should train their noncareer appointees in the history and constructive 

objectives of the SES. They should also create career plans that ensure that an executive's 

knowledge and skills are constantly utilized to the fullest extent possible in order to protect 

against executives abandoning their SES careers because the work is not interesting, enjoyable, 

or challenging enough. 

c. Federal Personnel Management Since Civil Service Reform: A Survey of Federal Personnel 

Officials 

Federal personnel specialists reported that many of the expectations for civil service 

improvements created by the Civil Service Reform Act of 1978 had not yet been realized. This 

report was based on a 1988 Board survey of 3,500 Federal personnel specialists. 

The survey covered such topics as prohibited personnel practices, delegations of authority, 

performance management programs, recruitment and selection, and various activities of OPM. 

Although there were some positive findings, the survey respondents believed that further 

improvements were needed in most areas. 

Among the notable positive findings was that fewer than one percent of respondents had 

observed employees being pressured to contribute to a political campaign or participate in political 

activity. On the other hand, job selection based on friendship, rather than merit, was observed by 

43 percent of the respondents. Only 49 percent believed that protections were adequate for 

persons who attempted to expose prohibited personnel practices. 

While 83 percent of the personnel specialists believed that delegations of authority from OPM to 

agencies led to improved personnel management, only 60percent believed the same was true of 

delegations from agency personnel offices to line managers. Fewer than half believed OPM had been 

effective in monitoring agency personnel systems to detect abuses. More, however, rated OPM as 

effective in providing advice and assistance to agencies and in making efforts to simplify and 

deregulate personnel management. 

Few of the respondents believed that the Federal performance management programs had 

improved productivity or increased organizational effectiveness. They were generally positive, 

however, about the results of the Federal Equal Opportunity Recruitment Program (FEORP), with 

55 percent saying that it had caused their organization to identify and hire qualified women and 

minority applicants who would not have been recruited otherwise. 

d Why Are Employees Leaving the Federal Government? Results of an &it Survey 

This report examined the reasons Federal employees leave Government service. It was based on 

an exit survey completed anonymously by nearly 2,800 full-time, permanent, white-collar 

employees who were in the process of leaving the Government. Over half (54 percent) of the survey 

respondents were satisfied with their Government jobs, and 61 percent had performance ratings 

above fully successful. Of all the respondents, less than one-fourth indicated that management 

had made an effort to keep them from leaving. 

For those respondents who resigned, 28 percent cited compensation and advancement reasons 

as the single most important reason for leaving. The importance of compensation was confirmed 

by the finding that respondents who resigned to work elsewhere expected to increase their 

average salary by 26 percent. Organizational and management reasons (e.g., morale, red tape, 

stress, unfair treatment) and work-related reasons (e.g., poor use of skills, meaningless work) 

were important secondary reasons for leaving. These reasons, taken together, accounted for 32 

percent of the reasons for leaving. Unlike pay, many of these reasons are ones that can be 

addressed directly by Federal managers. 
Retirees left because of concerns about changes to the retirement system (20 percent) and 

desires to pursue nonwork interests (23 percent). Compensation was not as major a factor for 

retirees (11 percent), but organizational and management reasons (25 percent), as a group, 

appeared prominently among the reasons for retiring. 

e. Working for America: A Federal Employee Survey 

This report reflected the attitudes and perceptions of a large random sample (nearly 16,000) of Federal employees 

who completed MSPB's Merit Principles Survey. The results covered a variety of topics. 

For example, some 70 percent of the respondents were satisfied with their jobs and 88 percent 

found their work meaningful. Nevertheless, only 49 percent said they would recommend working for 

the Government. 

More than 40 percent of the respondents indicated that the quality of applicants for job 

vacancies (of all types and at all levels) had worsened in the last 4 years. At the same time, 56 

percent of the employees leaving the work unit were considered "outstanding performers," while 

only 36 percent of the new hires were considered "outstanding." 

Of the 55 percent of respondents who said they had not changed jobs in the last 3 years, many 

(40 percent) indicated that the nature of their jobs had changed substantially. About one-third of 

these employees indicated that they were not receiving the training needed either to keep pace with 

changes or to learn how to use new technology. 

Other questions in the survey asked about prohibited personnel practices, performance 

management, productivity, the Senior Executive Service, partisan political activity, and drug abuse.