U.S. Merit Systems Protection Board 

Washington. DC 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

In accordance with 5 U.S.C. § 1206, we are pleased to submit the Sixteenth 

Annual Report of the U.S. Merit Systems Protection Board. The report reviews the 

significant activities of the Board during fiscal year 1994, including the Federal employee 

appeals and other cases decided by the Board. The report also describes the initiatives 

undertaken by the Board to reengineer the agency to improve customer services and 

implement recommendations of the National Performance Review. 

During the fiscal year, the Board's administrative judges decided 8,552 appeals, 

stay requests, and addendum cases. The 3-member bipartisan Board decided 2,031 

cases under its appellate jurisdiction, principally petitions for review (PFRs) of 

administrative judges' initial decisions. The Board also completed action on 75 cases 

arising under its original jurisdiction—Hatch Act cases, Special Counsel disciplinary 

actions, Special Counsel stay requests, proposed actions against administrative law 

judges, and requests to review regulations of the Office of Personnel Management 

(OPM). 

The Board's decisions continue to be upheld by the U.S. Court of Appeals for 

the Federal Circuit to a significant extent. Of the final Board decisions reviewed by the 

court in fiscal year 1994, 93 percent were unchanged by the court's decisions. 

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

to review the significant actions of OPM, the Board published five reports during the fiscal 

year, including the results of its latest triennial survey of Federal employees, an 

examination of OPM policies regarding temporary employment, and a report on 

whistleblowing in the Federal Government. 

Respectfully submitted, 

Ben L. Erdreich

Chairman 

Jessica L. Parks 

Vice Chairman

Antonio C. Amador

Member
TABLE OF CONTENTS 

Board Mission and Jurisdiction.........................................................................6 

Board Members..............................................................................................10 

SPECIAL SECTION: REINVENTING MSPB..................................................12 

Board Organization.........................................................................................16 

Regional Officials............................................................................................18 

Regional and Field Office Jurisdictions...........................................................19 

Fiscal Year 1994 Case Processing - 

Statistical Highlights ....................................................................................20 

Adjudication: Appellate Jurisdiction ................................................................30 

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

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

Merit Systems Studies 

and Reviews of OPM Significant Actions ...................................................42 

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

Financial Statement........................................................................................47 

Appendix A - Significant Board Decisions - 

Appellant Jurisdiction Cases ......................................................................48 

Appendix B - Significant Board Decisions - 

Original Jurisdiction Cases..........................................................................54 

Appendix C - Significant Litigation..................................................................57 

Appendix D - Merit Systems Studies and Reviews 

of OPM Significant Actions.........................................................................61 

Customer Service Standards .........................................................................63 
BOARD MISSION AND JURISDICTION 

MISSION 

The U.S. Merit Systems Protection Board (MSPB) was established by the Civil Service 

Reform Act of 1978 (CSRA), Public Law 95454, as a successor agency to the Civil Service 

Commission. It is an independent, quasi-judicial agency in the Executive Branch that serves as 

the guardian of Federal merit systems. 

The Board's mission is to ensure that Federal employees are protected against abuses by 

agency management, that Executive Branch agencies make employment decisions in 

accordance with the merit system principles, and that Federal merit systems are kept free of 

prohibited personnel practices. The Board accomplishes its mission by: 

Hearing and deciding employee appeals from agency personnel actions (appellate 

jurisdic tion); 

• Hearing and deciding cases brought by the Special Counsel involving alleged 

abuses of the merit systems, and other cases arising under the Board's original jurisdiction; 

Conducting studies of the civil service and other merit systems in the Executive Branch to 

determine whether they are free of prohibited personnel practices; and 

• Providing oversight of the significant actions and regulations of the Office of 

Personnel Management (OPM) to determine whether they are in accord with the merit system 

principles and free of prohibited personnel practices. 

JURISDICTION Appellate Jurisdiction 

The agency actions that Federal employees may appeal to the Board include: adverse 

actions (removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs 

of 30 days or less), performance-based removals or reductions in grade, denials of within-grade 

increases, certain reduction-in-force (RIF) actions, denials of restoration to duty or 

reemployment rights, and removals from the Senior Executive Service (SES) for failure to be 

recertified. Determinations by OPM in employment suitability and retirement matters are also 

appealable to the Board. 

When an issue of prohibited discrimination is raised in connection with an appealable 

action, the Board has jurisdiction over both the appealable action and the discrimination issue. 

Such appeals are termed "mixed cases." In these cases, an appellant may ask the Equal 

Employment Opportunity Commission (EEOC) to review the final decision of the Board. If the 

EEOC disagrees with the Board's decision on the discrimination issue, the case is returned to 

the Board. The Board may concur with EEOC, affirm its previous decision, or affirm its previous 

decision with modifications. If the Board does not concur in the EEOC decision, the case is 

referred to the Special Panel for a final decision. (The Special Panel is composed of a Chairman 

appointed by the President, one member of the Board, and one EEOC commissioner.) 
Under the Whistleblower Protection Act of 1989 (WPA), personnel actions that are not normally 

appealable to the Board may result in the right to a Board appeal under certain circumstances. 

Included are appointments, promotions, details, transfers, reassignments, and decisions 

concerning pay, benefits, awards, education, or training. Such an action may be appealed to the 

Board only if the appellant alleges that the action was taken because of whistleblowing, and if 

the appellant first filed a complaint with the Special Counsel and the Special Counsel did not 

seek corrective action from the Board. 

For the Board to have jurisdiction over an appeal, it must possess jurisdiction over both the 

action and the individual filing the appeal. The employees and others (e.g., applicants for 

employment, annuitants in retirement cases) who may appeal specific actions vary in 

accordance with the law and regulations governing the specific action. For some actions, 

classes of employees, such as political appointees, and employees of specific agencies are 

excluded. 

With respect to adverse actions, which account for almost half of all appeals to the Board, 

the following categories of employees have appeal rights: (1) employees in the competitive 

service and excepted service employees with veterans preference (called "preference 

eligibles") who have completed their probationary period; (2) non-preference eligible 

employees in the excepted service (excluding those in the Postal Service and certain other 

agencies) who have completed two years current continuous service in an Executive agency; 

and (3) non-preference eligible supervisors and managers in the Postal Service. 

Original Jurisdiction 

Cases that arise under the Board's original jurisdiction include: 

Corrective and disciplinary actions brought by the Special Counsel against agencies or 

Federal employees who are alleged to have committed prohibited personnel practices, or to 

have violated certain civil service laws, rules or regulations; 

• Requests for stays of personnel actions alleged by the Special Counsel to result from 

prohibited personnel practices; 

• Disciplinary actions brought by the Special Counsel alleging violation of the Hatch Act; 

• Certain proposed actions brought by agencies against administrative law judges; 

• Requests for review of regulations issued by the Office of Personnel Management, or 

of implementation of OPM regulations by an agency; and Informal hearings in cases 

involving proposed performance-based removals from the Senior Executive Service. 
Judicial Review 

With two exceptions, judicial review of final Board decisions in both appellate and original 

jurisdiction cases lies in the U.S. Court of Appeals for the Federal Circuit. Board decisions in 

"mixed cases" may be appealed to the appropriate U.S. district court. (A Special Panel decision 

also may be appealed to the appropriate U.S. district court.) If review of all issues except the 

discrimination issue is requested, however, a "mixed case" appellant may elect review by the 

Federal Circuit. In Hatch Act cases involving state or local government employees, judicial 

review lies first in the U.S. district courts and then in the regional courts of appeals. 

TThe Director of OPM may petition the Board for reconsideration of a final decision. The 

Director also may seek judicial review in the Federal Circuit of Board decisions that have a 

substantial impact on a civil service law, rule, regulation, or policy. 

Legislative Action 

The second session of the 103rd Congress considered several measures with direct 

impact on the Board's jurisdiction, authorities, and adjudicatory procedures. Of these measures, 

two were approved by the Congress during fiscal year 1994, and a third was passed just prior to 

adjournment in early October. All were subsequently signed by the President. 

Additional Protections Against Prohibited Personnel Practices - Most important in terms of 

its impact was Public Law No. 103424, which reauthorized the Merit Systems Protection Board 

and the Office of Special Counsel through fiscal year 1997 and made several changes in the 

statutory provisions applicable to prohibited personnel practices, including extensions of the 

protections afforded Federal whistleblowers. 

The law extends whistleblower protections to employees of Government corporations (as 

defined at section 9101 of title 31 of the U.S. Code). It extends coverage for all prohibited 

personnel practices, including actions based on whistleblowing, to employees of the Veterans 

Health Administration appointed under chapter 73 or 74 of title 38 of the U.S. Code. With respect 

to all prohibited personnel practices, it adds a new covered personnel action—a decision to 

order psychiatric testing or examination—and broadens covered personnel actions to include 

"any other significant change in duties, responsibilities, or working conditions." 

When the Board orders corrective action in an appeal brought by a whistleblower, the law 

requires the Board to order payment of any attorney fees incurred and also permits the Board to 

order reimbursement of the appellant's medical costs, travel expenses, and "any other 

reasonable and foreseeable consequential damages." It authorizes the Board to order payment 

of attorney fees and consequential damages when it orders corrective action in response to a 

prohibited personnel practice complaint brought by the Special Counsel. The Board may also 

order payment of attorney fees when an employee prevails in a disciplinary action brought by 

the Special Counsel. 
The law provides a new standard for the issuance of subpoenas in whistleblower cases and 

clarifies what an appellant must show to prove that whistleblowing was a "contributing factor" in 

the personnel action being appealed. It also provides that when the Board determines that a 

current Federal employee may have committed a prohibited personnel practice, that 

determination must be referred to the Special Counsel for investigation and possible prosecution 

in a disciplinary action before the Board. 

The law provides a new exception to the general rule that a bargaining unit employee affected 

by a personnel action that is appealable to the Board and also covered by a negotiated 

grievance procedure (NGP) must pursue a grievance under the NGP. An employee affected by 

a prohibited personnel practice other than discrimination may elect to pursue a grievance under 

the NGP, file an appeal with the Board, or seek corrective action from the Special Counsel. 

Once the employee elects one of these three administrative remedies, the other two are 

foreclosed. As was the case prior to enactment of Public Law No. 103-424, bargaining unit 

employees who raise an issue of prohibited discrimination in connection with a covered 

personnel action may pursue either an appeal to the Board or a grievance under a NGP. 

In cases decided by an arbitrator under a NGP, where a prohibited personnel practice is 

involved, Public Law No. 103-424 authorizes the arbitrator to order the agency to take 

disciplinary action against the employee or employees who committed the prohibited personnel 

practice. An employee subject to disciplinary action ordered by an arbitrator has the same right 

to appeal the action to the Board, and to seek judicial review of the Board's decision, as if the 

agency had taken the action absent the arbitrator's order. 

Veterans' Reemployment Rights - Public Law No. 103-353, the "Uniformed Services 

Employment and Reemployment Rights Act of 1994" (USERRA), strengthens the reemployment 

rights of both government and private sector employees when they return from military duty. The 

law gives the Board specific statutory authority to hear appeals involving reemployment rights 

from Federal employees returning from military duty; previously the Board heard such appeals 

under regulations promulgated by OPM. 

Under USERRA, a Federal employee has several opportunities for an appeal to the Board. 

When a Federal agency denies an employee returning from military service his or her rights 

under the Act, the employee may ask the Secretary of Labor for assistance in resolving the 

matter or may file an appeal directly with the Board. If the employee chooses to ask the 

Secretary of Labor for assistance and the Secretary is unable to resolve the matter with the 

agency, the employee then may ask to have the matter referred to the Special Counsel or may 

file an appeal with the Board. If the employee chooses to have the matter referred to the Special 

Counsel and the Special Counsel agrees to represent the employee, the Special Counsel is 

authorized to file an appeal with the Board on the employee's behalf. If the employee chooses to 

have the matter referred to the Special Counsel and the Special Counsel declines to represent 

the employee, the employee may then file an appeal with the Board. In addition to permitting the 

Special Counsel to represent Federal employees in appeals to the Board under the Act, 

USERRA provides that where the Special Counsel so represents an employee, she may also 

represent the employee in an appeal of the Board's decision to the Federal Circuit. 
RIF Appeal Rights for Foreign Service Employees - Public Law No. 103-236, the Foreign 

Relations Authorization Act, includes an amendment to the Foreign Service Act of 1980 that 

establishes rights and procedures for reduction-in-force actions affecting Foreign Service 

employees. The amendment provides Foreign Service employees affected by RIF actions the 

right to appeal to the Board. The Secretary of State was directed to promulgate regulations 

governing Foreign Service RIFs, after consultation with the Director of OPM. 

Several provisions of these new laws—including the additional covered employees and 

personnel actions for whistleblower appeals, the availability of consequential damages for 

prevailing appellants in whistleblower appeals, and the extension of RIF appeal rights to 

Foreign Service employees—have the potential for increasing the Board's workload. Appeals 

under these laws also are expected to raise new legal issues that the Board must decide 

through its case adjudication. As fiscal year 1995 began, the Board and staff were developing 

new procedures and revising existing procedures to ensure proper implementation of these 

laws. 
BOARD MEMBERS 

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

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

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

TCHAIRMAN 

T

1993, following his nomination 

confirmation by the Senate. His term appointment expir

March 1, 2000. Previously, he served for 10 years in the 

U.S. Congress as the represent

Alabama. He was a member anking, 

F ittee 

ission 

e 

nd 

BEN L. ERDREICH became Board Chairman on July 2, 

by President Clinton and 

es 

ative of the 6th District of 

of the Committee on B

inance and Urban Affairs and chaired its Subcomm

on Policy Research and Insurance. Mr. Erdreich was a 

Member of the Jefferson County (Alabama) Comm

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

firm of Cooper, Mitch & Crawford, Attorneys, in 

Birmingham, Alabama. He served in the Alabama Hous

of Representatives from 1970 to 1974. He is a graduate of 

Yale University and received his J.D. degree from the 

University of Alabama School of Law. He is admitted to the Alabama and District of 

Columbia bars and is a member of the Federal Circuit, District of Columbia, Alabama, a

Birmingham bar associations. 
VICE CHAIRMAN MEMBER

ANTONIO C. AMADOR became Vice 

Chairman of the Board on November 1, 

1990, following his nomination by 

President Bush and confirmation by the 

Senate. Currently, he serves as Member 

of the Board. His term appointment 

expires March 1, 1997. At the time of his 

appointment to the Board, Mr. Amador 

was Deputy Director, Program Review 

Branch, Employment Development 

Department of the State of California. 

Previously, he served as Director of the 

California Youth Authority, as Chairman 

of the Youthful Offender Parole Board in 

California, and as a police officer in the 

Los Angeles Police Department. He 

received his law degree from the 

McGeorge School of Law, University of 

the Pacific. 

JESSICA L. PARKS was designated Vice 

Chairman of the Board by President Clinton 

on July 30, 1993. Previously, she served as 

Member of the Board from May 18, 1990, 

following her nomination by President Bush 

and confirmation by the Senate. Her term 

appointment expires March 1, 1995. 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. Previously, 

she was Agency Counsel for the Craven 

County Department of Social Services in New 

Bern, North Carolina. She has also been in 

private practice in Jacksonville, North Carolina, and was an associate in the firm of 

Bowers and Sledge in New Bern. She is a 

graduate of Tulane University and received 

her J.D. degree from the University of 

Tennessee College of Law. She is admitted to 

the North Carolina Bar and is a member of the 

American, Federal, and Federal Circuit bar 

associations. 
SPECIAL SECTION: REINVENTING MSPB 

INTRODUCTION 

The Merit Systems Protection Board's reengineering initiatives in fiscal year 1994 

produced a more efficient organization with a strong commitment to customer service. Board 

customers—Federal employees, their employing agencies, and the public—benefit from a 

streamlined civil service appeals process. 

The Board reduced headquarters offices from 11 to 7 and improved the supervisor-toemployee ratio. It also realigned its regional office structure, reducing the number of regional 

offices from 11 to 6. The change reduced management and administrative layers and allowed 

the Board to direct its resources to adjudicative functions. By the end of fiscal year 1994, the 

agency had reduced its staff to 286 full-time equivalents (FTE), well below its target level for 

fiscal year 1995 (298 FTE) and only 11 over the FTE level of 275 targeted for fiscal year 1999. 

As part of its reengineering effort, the Board reviewed every office to see where 

operations could be simplified, managerial layers eliminated, and customer service improved. 

Despite its leaner look, the MSPB is now equipped to provide better access to its processes and 

overall better service. 

EASIER ACCESS TO MSPB INFORMATION 

During fiscal year 1994, the Board began providing the public with immediate, 7-days-aweek self-service access to the most current information about the Board and its procedures 

through a computer bulletin board. The on-line access through the Federal Bulletin Board, 

operated by the Government Printing Office, to Board decisions, weekly summaries of cases 

decided, and summaries of merit systems studies and reviews of OPM significant actions 

provides an important new source of information about the agency's operations. 

The MSPB Library on the US. Government Printing Office's Federal Bulletin Board can be 

accessed by computer modem at 202-512-1387 seven days a week. The Federal Bulletin Board 

can also be accessed via Internet (telnet to wais.access.gpo.gov). User assistance is available 

from GPO from 8 AM to 4 PM Eastern time, Monday through Friday, by calling 202-512-1524. 

MSPB also has an Internet e-mail address. Comments or questions regarding MSPB may 

be sent via Internet to mspb@mspb.gov. 

EXPANDED SETTLEMENT PROGRAMS 

Alternative Dispute Resolution Procedures -Building on its successful experience at the 

regional office level with settlement of initial appeals, the Board established a program to apply 

alternative dispute resolution procedures to cases pending before the full Board for review. The 

Board's program is intended to facilitate the parties' voluntary settlement of their cases. Public 

policy favors settlement because it avoids costly and unnecessary litigation and encourages the 

fair and speedy resolution of issues. It also increases the likelihood of the parties reaching a 

result they find acceptable, an especially valuable benefit in workplace disputes. Although it is 

too early for a meaningful statistical assessment of the program, the success rate so far has 

ranged from 20-30 percent. The full Board reviews almost 2,000 cases annually. 

Pilot Settlement Judge Program - During fiscal year 1994, the Board initiated a pilot 

program in its regional and field offices to use separate settlement judges in attempting to 

resolve initial appeals without litigation. Under this program, an appeal is assigned to an 
administrative judge for adjudication as usual, but a separate settlement judge works with the 

parties to try to settle the case. If settlement efforts are not successful, the appeal is adjudicated 

by the judge assigned to the case. 

Project to Evaluate Settlement Programs -The Board is participating in a pilot project 

under the Government Performance and Results Act to evaluate settlement procedures in 

adjudication. The Board's pilot project, "Utility of Settlement Methods in the Adjudicatory 

Process," is one of 71 pilot projects selected by the Office of Management and Budget to test 

strategic planning and performance results measurement. The Board is evaluating the 

effectiveness of settlement in its adjudicatory process in terms of time and cost savings and 

customer satisfaction. In its first project report, covering the last half of fiscal year 1994, the 

Board reported savings of almost $200,000 in court reporting and travel costs. The next report 

will address the results of the Board's analysis of customer satisfaction with the settlement 

process. 

Shelya White and Chuanda Johnson Human Resources 

Management Division 

EASIER CASE PROCESSING PROCEDURES 

Initial Appeals - Federal employees who are 

removed or face significant employment actions have 

more time to file appeals under new Board rules. The 

Board extended its time limits for filing appeals by 10 

days in most cases. The Board also made it easier for 

appellants to file appeals by changing its regulations to 

permit filing appeals by commercial overnight delivery 

service. The Board clarified its interim relief regulations to identify the evidence that an agency 

must provide to show compliance with an interim relief order. 

Petitions for Review - The Board revised its procedures for handling petitions for review 

improperly filed. For example, the Clerk of the Board may correct certain omissions, such as a 

required signature, administratively. Explanations for late-filed petitions for review can be made 

by filling out a simple form. The Clerk of the Board also provides appellants with a telephone 

number and the name of an employee who can respond to questions. 

SIMPLIFIED INTERNAL PROCEDURES 

The Board abolished a number of manuals, including a 40-page information security 

manual, a 20-page mail manual, a 41-page legal style manual, and a 73-page correspondence 

style manual—a total of almost 175 pages of unnecessary internal regulations. The Board also 

instituted simplified purchasing procedures; reduced paperwork in handling travel expenses; and 

centralized the purchases of items commonly used. 
WORKPLACE ISSUES IN STUDIES AGENDA 

Vanessa Gray, Office of the Clerk of the Board

The Board is focusing its study initiatives on 

workplace issues particularly related to the National 

Performance Review goals of streamlining 

government to be more effective and efficient. Two 

reports published in fiscal year 1994, Entering 

Professional Positions in the Federal Government 

and Temporary Employment: In Search of Flexibility 

and Fairness, explore the Federal Government's 

staffing system and recommend changes to serve 

the public better, enhance agency mission 

accomplishment, and allow managers and 

supervisors to do their jobs more effectively. A study 

of procedural rules applicable to Federal staffing, 

currently underway, looks at the impact of overly 

restrictive rules on the quality and diversity of the 

Federal workforce and identifies alternatives that 

will foster hiring and retaining a qualified and 

diverse workforce. The search for practices to revitalize human resources includes a Board 

study of innovative practices in state governments that might be applied to the Federal 

workplace. The Board's study on alternative dispute resolution practices in Federal agencies 

should further the NPR goal of reducing adversarial confrontations in the Federal workplace. 

PUTTING CUSTOMERS FIRST 

The Board developed Customer Service Standards to assure its customers that they will 

receive quality service and to assure the public as a whole that the Board is ably promoting and 

protecting the Federal merit systems. The Customer Service Standards are printed at the end of 

this publication. 

EMPOWERING EMPLOYEES 

Reengineering - MSPB employees at all levels were involved in the restructuring process, 

and their recommendations were key to the agency's new look. Teams of employees evaluated 

individual offices—interviewing employees, examining office practices, workflow, management 

layering, reporting structure, and employee empowerment—and recommended changes. The 

MSPB Professional Association (the bargaining representative for attorneys) and the Chairman's 

Council (made up of both supervisory and non-supervisory employees) were also critical to the 

restructuring process. 

Partnership Council - The Chairman established an agencywide Partnership Council, a 

body of 10 members representing the Chairman's office, senior executives, and management, 

supervisory and nonbargaining unit employees. The Council's statement of purpose sets a broad 

agenda: "The Council intends to foster MSPB employee participation to the greatest possible 

degree by incorporating the advice and suggestions of employees at all levels of interest and 

professional responsibility within the agency. By including representatives of all employee 

groups, who exemplify a broad spectrum of interest and experience, the Council intends to 

achieve diversity in employee participation, innovation in perspective, and inclusive agencywide 

participatory partnership." 
Family-Friendly Work Environment - The Board extended the availability of alternative 

and flexible work schedules to employees in all offices of the Board. The agency began an 

alternative work schedule (AWS) pilot project that allows five offices to make exceptions to 

agencywide AWS policy, essentially tailoring their AWS programs to meet the needs of their 

particular offices. The Board also expanded its use of flexiplace to include additional 

headquarters and regional offices.

Dinh Chung, Office of the Clerk of the Board William McDermott, Information Resources Management 

Division

BOARD ORGANIZATION 

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

Each has his/her individual office. 

The Chairman, by statute, is the chief executive and administrative officer of the Board. 

All office heads report directly to the Chairman. 

The Office of the Administrative Law Judge and Regional Operations manages the 

appellate functions of the MSPB regional offices and adjudicates cases governed by the 

Administrative Procedure Act and other cases assigned by the Board. The six regional offices 

(including five field offices) receive and process the initial appeals filed with the Board. 

Administrative judges in the regional and field offices have the primary function of adjudicating 

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

The Office of Appeals Counsel assists the Board in adjudicating petitions for review of 

initial decisions issued by its administrative judges and requests for review of arbitration 

decisions in certain cases. The office analyzes the petitions, conducts legal research, and 

submits proposed opinions to the Board for final adjudication. It also conducts the Board's 

petition for review settlement program, processes interlocutory appeals of rulings made by 

administrative judges, makes recommendations on reopening appeals on the Board's own 

motion, and provides research and policy memoranda to the Board on legal issues. 
The Office of the Clerk of the Board receives and processes cases filed with the Board, rules 

on certain procedural matters, and issues the Board's Opinions and Orders. The office also 

certifies official records to the courts and Federal administrative agencies, maintains the Board's 

law library, manages the Board's records, and administers the Board's Freedom of Information 

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

The Office of the General Counsel, as legal counsel to the Board, provides advice to 

the Board and its organizational components on matters of law arising in day-to-day operations. 

It represents the Board in litigation and prepares proposed decisions and orders for the Board in 

original jurisdiction cases, compliance referral cases, and other assigned cases. The office 

coordinates the Board's legislative policy, congressional relations, and public affairs functions, 

and produces the agency's annual report to the President and the Congress and public information publications. The office also conducts the Board's ethics program and plans and directs 

audits and investigations. 

The Office of Policy and Evaluation carries out the Board's statutory responsibility to 

conduct special studies of the civil service and other merit systems, including annual oversight 

reviews of the Office of Personnel Management. Reports of these studies are directed to the 

President and the Congress. The office also provides assistance to Federal departments and 

agencies seeking to improve agency operations through more effective human resources 

management. 

The Office of Equal Employment Opportunity plans, implements, and evaluates the 

Board's equal employment opportunity (EEO) programs. It processes complaints of alleged 

discrimination and furnishes advice and assistance on affirmative action initiatives to the Board's 

managers and supervisors. 

The Office of Planning and Resource Management Services coordinates the Board's 

strategic planning and manages the Board's administrative operations. It is made up of three 

divisions: The Financial and Administrative Management Division administers the budget, 

accounting, procurement, property management, physical security, and general services 

functions of the Board. It also develops and coordinates internal management programs and 

projects, including review of internal controls agencywide. The Human Resources 

Management Division manages personnel programs and assists managers, employees, and 

applicants for employment. It administers staffing, classification, employee relations, 

performance management, payroll, personnel security, and training functions. The Information 

Resources Management Division develops, implements, and maintains the Board's automated 

information systems in order to help the Board manage its caseload efficiently and carry out its 

administrative and research responsibilities. 
ORGANIZATION CHART 
REGIONAL OFFICIALS 

Paul G. Streb 

Administrative Law Judge

Thomas J. Lanphear Martin W. Baumgaertner Paula A. Latshaw 

Regional Director Regional Director Regional Director 

Atlanta Office Chicago Office Dallas Office 

Lonnie Crawford Denis Marachi P.J. Winzer 

Regional Director Regional Director Regional Director 

Philadelphia Office San Francisco Office Washington, DC Office 
REGIONAL AND FIELD OFFICE JURISDICTIONS

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

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

Chicago Regional Office-- Illinois (all locations north of Springfield), Indiana, Michigan, Minnesota, Ohio, and 

Wisconsin 

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

Denver Field Office-- Arizona, Colorado, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, 

South Dakota, Utah, and Wyoming 

New York Field 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 Field Office-- Illinois (Springfield and all locations south), Iowa, Kentucky, Missouri, and Tennessee 

San Francisco Regional Office-- California 

Seattle Field Office-- Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas 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 
FISCAL YEAR 1994 

CASE PROCESSING -STATISTICAL HIGHLIGHTS 

KINDS OF APPELLATE JURISDICTION CASES 

The kinds of appellate jurisdiction cases in which the Board's administrative judges 

issue initial decisions or orders are: 

• Appeal (or Initial Appeal) - A request by an appellant that the Board review an 

agency action. 

• Stay Request - A request that the Board order a stay of an agency action (authorized only where the appellant alleges that the action was or is to be taken because 

of whistleblowing). 

• Motion for Attorney Fees - A request by an appellant who prevails in an appeal that 

the Board order the agency to pay the appellant's attorney fees. 

• Petition for Enforcement - A request by a party to an appeal that the Board enforce 

its final decision. 

• Request for Compensatory Damages - A request by an appellant who prevails in a 

mixed case appeal on the basis of discrimination for payment of compensatory 

damages under the Civil Rights Act of 1991. 

• Remand - A case returned to an administrative judge by the Board or court, after an 

initial decision has been issued, for additional processing and issuance of a new 

initial decision. 

Attorney fee cases, petitions for enforcement, requests for compensatory damages, 

and remands, as a group, are termed "addendum cases" by the Board. 

Approximately 20 percent of initial appeals decided result in the filing of a petition for 

review at Board headquarters. Initial decisions in addendum cases and orders issued on stay 

requests are also subject to review by the Board. In addition, the Board has authority to 

review an arbitrator's award when the subject of the grievance is an action appealable to the 

Board and the grievant raises a discrimination issue in connection with the action. The kinds 

of appellate jurisdiction cases in which the Board issues final decisions or orders are: 

• Petition for Review - A request by a party that the Board review an initial decision of 

an administrative judge. A petition for review may be filed with respect to an initial 

decision on an appeal or in an addendum case. 

• Request to Review Stay Ruling - A request by a party that the Board review an 

administrative judge's order ruling on a stay request. 

•
Petition to Review Arbitrator's Award -A request that the Board review an 

arbitrator's award where the employee has grieved an action appealable to the 

Board and the employee raises an issue of prohibited discrimination. 

• Reopening on the Board's Own Motion -A case that the Board reopens on its own 

motion, to reconsider either an initial decision of an administrative judge or a final 

Board decision. 

• OPM Request for Reconsideration - A request by the Director of OPM that the 

Board reconsider a final decision. 

• • Court Remand - A case returned to the Board by a court, after an appellant or the 

Director of OPM has sought judicial review of a final Board decision, for issuance of 

a new decision. Also, a case returned by a court where the Board has requested 

remand. 

• EEOC Non-concurrence - A mixed case returned to the Board by the EEOC, after 

an appellant has sought EEOC review of a Board decision, in which the EEOC does 

not concur with the Board decision on the discrimination issue. 

• Compliance Referral - A case referred to the Board by an administrative judge for 

enforcement of a final Board decision, upon the administrative judge's finding that a 

party is not in compliance. 

• Request for Stay Pending Judicial Review - A request by a party that an order of the 

Board be stayed pending judicial review of that order. 
CASES DECIDED BY MSPB IN FY 1994 

Initial Decisions: 

Appeals ...................................................................................................... 7,530 

Addendum Cases 912 1 ....................................................................................................................................

Stay Requests 2 ............................................................................................................................................. 110 

TOTAL ........................................................................................................ 8,552

Board Decisions: 

Appellate Jurisdiction: 

PFRs - Appeals .......................................................................................... 1,696 

PFRs - Addendum Cases 184 1 ..................................................................................................................

Reviews of Stay Request Rulings ...................................................................... 1 

Requests for Stay of Board Order 

Pending Judicial Review............................................................................. 28 

Reopenings 3 ...................................................................................................................................................... 35 

Court Remands ............................................................................................... 29 

Compliance Referrals ..................................................................................... 49 

EEOC Non-concurrence Cases.......................................................................... 3 

Arbitration Cases................................................................................................ 6 

Subtotal ....................................................................................................... 2,031 

Original Jurisdiction (see separate report on p. 38).......................................... 75 

TOTAL ........................................................................................................ 2,106

1 Includes requests for attorney fees, requests for compensatory damages (discrimination cases 

only), petitions for enforcement, Board remand cases, and court remand cases. 

2 Includes 82 stay requests in whistleblower cases and 28 in non-whistleblower cases. 

3 Includes 31 cases reopened by the Board on its own motion and 4 cases where OPM requested 

reconsideration. 
Regional and Field Offices 

• Case Receipts - Receipts of new cases in the regional and field offices in 

fiscal year 1994 were up 27 percent from the previous fiscal year—from 7,844 

to 9,965—a 5-year high. RIF and retire ment appeals were up significantly. 

Appeals stemming from the Postal Service restructuring accounted for 16 

percent of all receipts of initial appeals during the fiscal year. At the end of the 

fiscal year, there were 3,245 cases pending in the regional and field offices, an 

increase of 77.5 percent over the number pending at the end of the previous 

fiscal year. 

REGIONAL CASE RECEIPTS Initial Appeals, Addendum Cases, and Stay Requests 
COMPARISON OF MSPB REGIONAL CASE RECEIPTS FISCAL YEARS 1993 AND 

1994 

RECEIPTS IN 

REGIONAL/FIELD 

OFFICES 

FY 1993 FY 1994 % INCREASE 

Initial Appeals 1 6,938 8,775 + 26.5 % 

Addendum Cases 2 805 1,078 + 33.9 % 

Stay Requests 101 112 + 10.9 % 

TOTAL 7,844 9,965 + 27.0 % 

Included in Initial 

Appeals Receipts are: 

CSRS Retirement 1,159 1,721 +48.5 % 

FERS Retirement 191 279 + 46.1 % 

ALL Retirement 1,350 2,000 + 48.1 % 

RIF 3 464 1,686 + 263.4 % 

1 Initial Appeals receipts for FY 1994 include 1,391 cases involving Postal Service reorganization. 

2 Addendum Case receipts for FY 1994 include 101 cases involving Postal Service reorganization. Addendum 

Cases include motions for attorney fees, motions for compensatory damages (discrimination cases only), 

petitions for enforcement, Board remands, and court remands. 

3 RIF appeal receipts for FY 1994 include 1,090 appeals involving Postal Service reorganization. The 

remainder of the Postal Service reorganization cases received were appeals of other personnel actions, 

principally adverse actions. 
• Number of Cases Decided – Administrative judges decided a total of 8,552 cases in FY 1994, 

an increase of 9.5 percent from the previous fiscal year. Of the cases decided, 7,530 were 

initial appeals, and 912 were addendum cases. Decisions on initial appeals were up 10 percent 

from the previous fiscal year, and those in addendum cases were up 7 percent. There were 

110 orders ruling on stay requests-82 in whistleblower cases and 28 in non-whistleblower 

cases. (Stay requests are authorized in whistleblower cases only. Appellants, however, 

sometimes file stay requests in cases in which no whistleblower issues are involved.) 

Decisions on stay requests increased 9 percent. 

• Disposition - Of the 7,530 initial appeals decided, 3,422 (45 percent) were dismissed. Of the 

dismissals, 77 percent were for lack of jurisdiction, agency cancellation of the action, or 

appellant withdrawal of the appeal. Twelve percent were dismissed as untimely, and 11 

percent were dismissed without prejudice to later refiling. The accompanying charts show the 

outcomes of appeals that were not dismissed and the disposition of appeals adjudicated on the 

merits. 

OUTCOMES OF FY 1994 APPEALS NOT DISMISSED 

Based on 4,108 initial appeals not dismissed. 

Percentages do not total 100% due to rounding. 
DISPOSITION OF INITIAL APPEALS ADJUDICATED ON THE MERITS IN FY 1994 

Based on 2,086 adjudicated initial appeals. 

• Settlement Rate - Of the 4,108 appeals that were not dismissed, 2,022 were settled, 

for an overall settlement rate of 49 percent. The settlement rate for adverse action 

cases was 65 percent; for performance cases, 72 percent; and for denials of withingrade increases, 76 percent. 

• Relief for Appellants - Considering the number of appeals settled (2,022) and those 

in which the agency action was reversed or mitigated (531), appellants received relief 

in 62 percent of the appeals not dismissed.

INITIAL DECISIONS IN APPEALS NOT DISMISSED - FY 1994 

Number Not Dismissed Relief for Appellant*

Settled 2,022 

Reversed 427 

Mitigated 104 

4,108 2,553 (62.1 %) 

* "Relief for Appellant" means the case was settled, or the initial decision reversed or mitigated the 

agency action (or corrective action was ordered in an IRA). 
• Processing Time - The average processing time for initial appeals was 81 days, corn-pared 

to 79 days in FY 1993. Of the initial appeals decided, 96 percent were decided within 120 

days. 

• Types of Actions Appealed - Of the initial appeals decided, 47 percent were appeals of 

agency adverse actions, 9 percent were RIF appeals, and 3 percent were appeals of performance-based actions. Retirement cases (both CSRS and FERS) accounted for 26 

percent of the total, and the remainder involved other types of agency actions. 

TYPES OF INITIAL APPEALS DECIDED IN FY 1994 

Total Number of Initial Appeals: 7,530 

Percentages do not total 100% because of rounding. 
• Whistleblower Appeals - There were 487 whistleblower appeals and stay 

requests decided. Of this number, 175 were individual right of action (IRA) 

appeals in which the appellant was required to exhaust the procedures of the 

Office of Special Counsel, 230 were direct appeals to the Board that included 

an allegation of reprisal for whistleblowing, and 82 were requests to stay an 

action allegedly based on whistleblowing. 

• Relief for Appellants in Whistleblower Appeals - Of the 405 whistleblower 

appeals decided (175 IRA appeals and 230 appeals of otherwise appealable 

actions), 215 (53 percent) were dismissed. In the other 190 whistleblower 

appeals, appellants received relief in 126 (66 percent). 

INITIAL DECISIONS IN WHISTLEBLOWER APPEALS NOT DISMISSED - 

FY 1994 

Whistleblower Number Relief for 

Case Type Not Dismissed Appellant * 

OAAs 126 88 (69.8 %) 

IRAs 64 38 (59.4 %) 

Total 190 126 (66.3 %) 

* "Relief for Appellant" means the case was settled, or the initial decision reversed or mitigated the 

agency action (or corrective action was ordered in an IRA). 

• Mixed cases - Allegations of discrimination were raised in 2,052 of the initial 

appeals decided; however, in 1,693 of those appeals, the discrimination issue 

was not decided because the case was dismissed (981) or settled (629) or the 

allegation was withdrawn (83). The remaining 359 mixed case appeals 

resulted in a finding of no discrimination in 351 (98 percent) and a finding of 

discrimination in 8 (2 percent). In the mixed cases settled or in which a 

discrimination issue was decided, appellants received relief—through 

settlement or reversal or mitigation of the agency action—in 73 percent (727 of 

988). 

Board Headquarters 

• Case Receipts - At headquarters, receipts of petitions for review and other 

appellate jurisdiction cases were up 15 percent from the previous fiscal year. 

This was the highest number of cases received in five years. 

• Number of Cases Decided - The 3-member Board decided a total of 2,031 

appellate jurisdiction cases in FY 1994, an increase of 29 percent from the 

previous fiscal year and also a 5-year high. Of the cases decided, 1,696 were 

petitions for review of initial decisions on appeals, 184 were petitions for 

review of initial decisions in addendum cases, and 151 were other appellate 
jurisdiction cases. At the end of the fiscal year, despite the record number of 

receipts, there were 586 appellate cases pending at headquarters, a decrease 

of 18.5 percent from the number pending at the end of fiscal year 1993. 

• Disposition - Of the petitions for review of initial decisions on appeals, 8 

percent were dismissed, 2 percent were settled, and 59 percent were denied 

for failure to meet the criteria for review. The Board reviewed the remaining 31 

percent—made up of 18 percent denied but simultaneously reopened by the 

Board and 13 percent granted. Of the decisions in these cases, 54 percent 

affirmed the initial decision, 14 percent reversed it, 23 percent remanded the 

case to the administrative judge, and 1 percent mitigated the agency action. In 

the remaining 8 percent, the case was subject to another disposition. 

• Processing Time - The average processing time for petitions for review of 

initial decisions on appeals was 162 days, compared to 131 days in FY 1993. 

The Board processed 61 percent of these cases in 110 days or less, averaging 

80 days. The principal reason for the increase in average processing time was 

the Board's emphasis on completing the oldest pending cases during the fiscal 

year. The Board closed more than 150 cases that were one year or longer in 

process.

• Other Appellate Cases - The Board decided 31 cases that it reopened on its 

own motion (excluding decisions on petitions for review where the Board 

denied the petition but simultaneously reopened the case), 4 OPM requests for 

reconsideration, and 29 court remands. The Board also decided 3 EEOC nonconcurrence cases, 49 compliance referrals, 6 petitions to review an 

arbitrator's award, 1 request to review a stay ruling, and 28 requests for stay 

of a Board order pending judicial review. 

Judicial Review 

• The U.S. Court of Appeals for the Federal Circuit reviewed 601 final Board 

decisions in FY 1994. Of this number, 93 percent were left unchanged (case 

dismissed or Board decision affirmed). The court affirmed the Board decision 

in 89 percent of the cases it adjudicated. 
ADJUDICATION: APPELLATE JURISDICTION 

PROCEDURES 

Initial Appeals 

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

geographic jurisdiction within 30 days of the effective date of the agency action. Where the 

notice of action does not set an effective date, the appeal must be filed within 35 days of the 

date of the notice. 

After an appeal has been received, the regional or field office issues an order 

acknowledging receipt of the appeal and raising any questions of timeliness or jurisdiction. 

The appeal is assigned to an administrative judge for adjudication. The agency is required to 

provide its evidentiary file to the appellant and the administrative judge. The appellant and the 

agency then have the opportunity to present additional information for the administrative 

judge's consideration. Under certain circumstances, the appellant may have a right to a 

hearing on the issues of jurisdiction and timeliness. 

Once jurisdiction and timeliness have been established, the appellant has a right to a 

hearing on the merits. During prehearing conferences, issues are defined and narrowed, 

stipulations to undisputed facts are obtained, and the possibility of settlement is discussed. If 

a hearing is held, each party has the opportunity to call and cross-examine witnesses, present 

evidence, and make arguments to the administrative judge. Hearings, which generally are 

open to the public, are fully recorded, with copies of the record available to the parties. Once 

the record is closed, an initial decision is issued by the administrative judge. 

When an appellant prevails in an appeal, interim relief is provided pending the outcome 

of any petition for review, unless the administrative judge determines that interim relief is not 

appropriate. If the administrative judge's decisionrequires the return of the appellant to the 

workplace, and the agency determines that such a return would be unduly disruptive, the 

agency must nevertheless restore the appellant to pay and benefits status. 

Different time limits for filing apply to appeals of actions allegedly based on 

whistleblowing, where the appellant has first filed a complaint with the Special Counsel. An 

appellant must file with the Special Counsel first if the complaint is based on an action that is 

not otherwise appealable to the Board and may file with the Board only after exhausting the 

procedures of the Office of Special Counsel. Appeals that reach the Board in this way are 

termed "individual right of action" or "IRA" appeals. 

An IRA appeal may be filed with the Board within 65 days after the date of a written 

notice from the Special Counsel stating that the office will not seek corrective action. A direct 

appeal to the Board is also authorized if 120 days have passed since the filing of the 

complaint with the Special Counsel, and the Special Counsel has not advised the appellant 

that the office will seek corrective action on his or her behalf. 
 

Raphael Ben-Ami, Administrative Judge

Where an appeal includes a whistleblower allegation and is based on an action that is 

otherwise appealable to the Board, the appellant may file directly with the Board or may first 

file a complaint with the Special Counsel. If the appellant chooses to file directly with the 

Board, the time limits for filing are the same as for all other direct appeals to the Board (30 or 

35 days, depending on the kind of action). If the appellant chooses to file with the Special 

Counsel first, the time limits for filing with the Board are the same as for an IRA appeal. In 

either case, such an appeal is termed an "otherwise appealable action" or "OAA" appeal. 

Under the Whistleblower Protection Act, an appellant may also ask the Board to stay a 

personnel action allegedly based on whistleblowing. A stay request may be filed when an 

appellant is eligible to file a whistleblower appeal, and it may be filed before, at the same time 

as, or after the appeal is filed. Stay requests are filed in writing with the Board regional or field 

office having geographic jurisdiction. By law, stay requests must be decided within 10 days of 

receipt of the request. 

With respect to mixed cases, if an appellant has first filed a discrimination complaint 

with the agency, the appellant may file an appeal with the Board within 30 days after receipt of 

the agency's decision. If the agency has not resolved the discrimination complaint within 120 

days of its filing, the appellant may file an appeal with the Board at any time after the 120-day 

time limit expires. If an appellant elects to file a mixed case appeal with the Board without first 

filing a discrimination complaint with the agency, the appeal must be filed within 30 days after 

the effective date of the agency action. 

Appeals involving classified national security information and appeals from MSPB 

employees are assigned to the Administrative Law Judge at headquarters for adjudication. 

The Administrative Law Judge hears these cases and issues an initial decision. 

Petitions for Review 

An initial decision on an appeal becomes the final decision of the Board unless a party 

files a petition for review with the Board within 35 days of the date of the initial decision or the 

Board reopens the case on its own motion. The Board may grant a petition for review when it 

is established that the initial decision of the administrative judge was based on an erroneous 

interpretation of statute or regulation, or that new and material evidence is available that, 

despite due diligence, was not available when the record was closed. 
When an agency files a petition for review of an initial decision that provided interim 

relief to the appellant, the agency must furnish evidence that it has provided appropriate 

interim relief. If such evidence is not provided, the Board will dismiss the petition for review. 

Petitions for review are filed with the Office of the Clerk at Board headquarters by either 

party, or, under certain circumstances, by the Office of Personnel Management or the Office 

of Special Counsel as an intervenor. The Board also has the discretion to reopen and 

consider an initial decision on its own motion. The Board's decision on a petition for review 

constitutes the final administrative action. 

SIGNIFICANT ACTIVITIES IN FISCAL YEAR 1994 

Decisions in Postal Service Restructuring Cases 

The Board issued its first decisions in cases arising from the 1992-1993 restructuring of 

the Postal Service in July 1993, ruling that the reorganization constituted a reduction-in-force 

and that demotions of preference-eligible employees in the reorganization, without the benefit 

of RIF procedures, must be reversed. (See Brown v. USPS and DiPietro v. USPS, 

summarized in the Fiscal Year 1993 Annual Report.) In November 1993, the Director of OPM 

sought review of the Board's ruling on the Postal Service restructuring by intervening in two 

cases, White v. USPS and Robinson, Diaz, and Yruegas v. USPS, pending before the Board 

on petitions for review from the Postal Service. In late January 1994, at the request of the 

Postal Service, the Board issued an order (Korthof, et al, v. USPS) that stayed proceedings in 

all of the Postal Service restructuring cases then pending before the Board and in the regional 

offices, and staying all interim relief orders in cases where initial decisions had been issued, 

pending issuance of final Board decisions in White and Robinson. The stay order affected 

almost 175 cases. The Board subsequently stayed proceedings in additional cases as they 

were filed. 

On June 24, 1994, the Board issued its final decisions in White v. USPS and OPM and 

Robinson, Diaz, and Yruegas v. USPS and OPM, affirming its 1993 decisions in Brown and 

DiPietro and reversing the agency's demotions of the appellants, all employees with veterans' 

preference. On June 29, 1994, the Board issued its decision in Marcoux v. USPS, an appeal 

of an adverse action—rather than a RIF—by a Postal Service employee without veterans' 

preference, and affirmed the administrative judge's initial decision that dismissed the appeal 

for lack of jurisdiction. On July 15, 1994, the Board issued an order (Korthof, et al, v. USPS) 

lifting the stay of proceedings in all Postal Service restructuring cases pending before the 

Board and in the regional and field offices, followed by a July 19 order (Adams, et al, v. 

USPS) affirming decisions in those cases where initial decisions had been issued at the time 

of the January stay order.

The Director of OPM initially filed a petition for review of the Board's White and 

Robinson decisions with the U.S. Court of Appeals for the Federal Circuit, but withdrew the 

petition in early August. Although OPM is the only Federal agency that may seek review of the 

Board's decisions in the Federal Circuit, the Postmaster General filed a motion for hearing by 

the court. On August 10, the Postmaster General announced that the motion was being 

withdrawn and that the Postal Service would abide by the Board's rulings. Previously, the 

Postal Service had filed a motion to stay the Board's orders pending judicial review, but in 

view of the agency's subsequent decision not to contest the rulings in court, the Board issued 

an order dismissing the motion for stay as moot (Adams, et al, v. USPS, September 13, 

1994). 
Patricia Paige, Office of the Clerk of the Board 

In final decisions issued on September 1, 

1994, the Board disposed of approximately 115 

pending petitions for review, reversing the Postal 

Service's actions in most of the cases, based on 

the White and Robinson rulings, and affirming th

agency actions in the remainder, based on 

Marcoux. On that same date, the Board issued 

an order (Robinson, et al, v. USPS) granting a 

motion by the Postal Service that the processing 

of all restructuring appeals in the regional and 

field offices be stayed for 30 days—until October 1, 1994—to allow the agency time to comply 

with the Board's orders. The Board's final significant decision of the fiscal year in these cases 

was issued on September 23, 1994, in Dixon, et al, v. USPS. In this consolidation of 15 

petitions for review from employees who had been detailed to placement centers during the 

Postal Service restructuring, the Board ruled that the details did not constitute demotions by 

RIF and affirmed the agency's actions. 

e 

The extensive news reports of the Board's decisions in the Postal Service restructuring 

cases prompted many calls for information to the Board's headquarters and regional offices, 

followed by a substantial increase in receipts of new appeals in the final quarter of the fiscal 

year. The Board received almost 1,400 appeals arising from the Postal Service restructuring in 

all of fiscal year 1994, and 1,300 such appeals were pending at the end of the fiscal year. The 

Board received 101 addendum cases related to the Postal Service restructuring appeals, 

primarily requests for attorney fees and petitions for enforcement. In addition to the workload 

represented by these cases for the next fiscal year, the Board expects to continue to be 

occupied with the Postal Service restructuring cases through related issues, such as the 

timeliness of appeals that were not filed until after the issuance of the Board's White and 

Robinson decisions, the issue of jurisdiction with respect to employees who retired rather than 

be affected by the restructuring, and questions regarding the agency's compliance with the 

Board's orders. 
POSTAL SERVICE REORGANIZATION CASES DECIDED BY MSPB IN FY 1994 

Initial Decisions on Appeals: 

Dismissed 136 

Settled 9 

Agency Action Affirmed 2 

Agency Action Reversed 81 

TOTAL 228 

Board Decisions on Petitions for Review: 

Dismissed 3 

Settled 3 

Granted\Remanded to Administrative Judge 2 

Denied 34 

Denied\Reopened\Affirmed Initial Decision 119 

Denied\Reopened\Vacated Initial Decision 4 

TOTAL 166 

Board Decisions on Reopenings: 

Affirmed Final Decisions 23 

Board Decisions on Motions to 

Stay Final Orders Pending Judicial Review: 

Dismissed - Moot 28 

POSTAL SERVICE REORGANIZATION CASES RECEIVED AND DECIDED BY 

MSPB IN FY 1994 

Initial Appeals: 

Pending 10/1/93 137 

Received 1,391 

Decided 228 

Pending 9/30/94 1,300 

Petitions for Review: 

Pending 10/1/93 70 

Received 155 

Decided 166 

Pending 9/30/94 59 
Significant Issues Addressed 

In decisions issued during fiscal year 1994, the Board continued its 

development of the law affecting Federal employment, deciding issues following from 

prior decisions and revisiting and revising the law as appropriate. The year saw the 

Board further refine the law being developed under the Whistleblower Protection Act. 

For example, it continued to determine what matters constitute personnel actions that 

may form the subject of individual right of action appeals and to distinguish between 

those disclosures under 5 U.S.C. § 2302(b)(8) that come within the scope of the Act 

and those that fall outside of it because they properly are protected under 5 U.S.C. § 

2302(b)(9). 

The Board also continued to develop case law in the area of interim relief. It 

issued decisions addressing the procedures by which it will act on cases raising 

interim relief issues, the nature of the proof agencies must submit to comply with 

interim relief orders, and when such proof must be submitted. 

Rosemary Sunseri and Eric Daniels, Office of 

Appeals Counsel 

The Board expanded its definition 

of good cause for waiver of its time li

to ensure that its processes would be 

open and available to all who are entit

to use them; set out the limits of the 

extent to which agencies may requ

employees to undergo psychiat

for duty examinations; set forth rules for 

determining whether a period of absence 

for medical reasons constitutes enforced

leave or a voluntary absence; added further to the law on the scope of accommoda

to which a disabled employee is entitled; and issued its first in-depth analysis of the 

damages provisions in the Civil Rights Act of 1994. 

mits 

led 

ire 

ric fitness 

tion 

See Appendix A for summaries of significant Board decisions on appeals issued 

during fiscal year 1994. 
Appellate Case Processing 

 Approximately 600 Board

decisions are filed after 

Initial Appeal decision 

becomes final or after three 

member Board review and 

decision. 

U.S. Court of Appeals 

for the Federal Circuit

U.S. District Court 

 Approximately 1600 

Petitions for Review of 

Initial Appeals and 

Addendum Cases filed 

yearly with the Clerk of 

the Board. Reviewed by 

the Office of Appeals 

Counsel.

MSPB Three Member Board 

Decision 

Mixed Cases (Discrimination) can go to 

Equal Employment Opportunity 

Commission and then to the U.S. 

district court, or directly to the district 

court.

 Other Appellate Cases: 

Enforcement; Equal 

Employment 

Opportunity 

Commission NonConcurrence; and 

Arbitration Appeals.

Pilot 

Settlement

Program 

For selected PFRs, 

Board attorneys

discuss settlement 

with parties.

If not settled, hearing, 

decision or decision on the 

record. Hearings generally 

opened to the public. 

Initial Decision After record is closed, the 

Administrative Judge issues an intitial 

decision.

Settlement If settled, Administrative Judge 

dismisses the case with issuance of 

decision, although parties may file a 

Petition for Review (PFR) with the 

Board.

Issues are defined, facts obtained, and settlement 

discussed.

Adverse decisions on 

Jurisdiction/Timeliness Petition for 

Review (PFR) to three member 

Board.

Jurisdiction/ Timeliness Once timeliness/jurisdiction is established, 

appellant entitled to hearing on the merits. 

 Approximately 8.000 Initial 

Appeals and Addendums yearly.

 Appeal Types: Adverse Action 

(Removal, Suspension, 

Demotion); Probationer; 

Reduction-in-Force; 

Performance; Within-Grade 

Denial; Suitability; Retirement; 

Whistleblower, Attorney Fee, 

Compliance, Remand, 

and Compensatory Damages.

Initial Appeals MSPB Eleven 

Regional Offices

Employee/Representative files initial appeal 

with 1 of 11 MSPB regional offices. 

Administrative Judges also rule on stay 

requests under the Whistleblower Protection 

Act.
ADJUDICATION: ORIGINAL JURISDICTION 

PROCEDURES AND KINDS OF CASES 

Original jurisdiction complaints are filed in writing with the Office of the Clerk at Board 

headquarters. Employees against whom Hatch Act or other Special Counsel disciplinary 

action complaints are filed have 35 days to respond and are entitled to a hearing. An 

administrative law judge against whom an agency proposes an action also has 35 days to 

respond and is entitled to a hearing. These cases, as well as Special Counsel corrective 

action complaints, are assigned to the Board's Administrative Law Judge, who issues a 

recommended decision to the Board for final action. 

Special Counsel stay requests and requests for regulation review are decided by the 

Board. An initial stay request may be granted by a single Board member, while a request for 

extension of a stay must be acted on by the full Board. A stay may be terminated by decision 

of the full Board following a motion by either the Special Counsel or the affected agency. 

Other cases included in the Board's original jurisdiction caseload include requests for 

attorney fees, petitions for enforcement, compliance referrals, court remands, and OPM 

requests for reconsideration arising out of Board decisions in original jurisdiction cases. With 

respect to attorney fee requests and petitions for enforcement related to Board decisions in 

Special Counsel and administrative law judge cases, an initial decision is issued by the 

Administrative Law Judge, which is then subject to a petition for review by the Board. 

In SES performance-based removal cases, the Administrative Law Judge holds an 

informal hearing, but the Board does not issue a decision. The record of the hearing is 

forwarded to the employing agency, OPM, and the Special Counsel for appropriate action. 
ORIGINAL JURISDICTION CASES DECIDED BY MSPB IN FY 1994 

CASE TYPE NUMBER DECIDED DISPOSITION 

OSC Corrective Actions....................................... 0 

OSC Disciplinary Actions.................................... 6 ...................................Suspension ordered - 2 

- Non-Hatch Act.................................................. ......................................$1,000 fine ordered - 2 

....................................................................... ......................................Remanded to ALJ - 1 

....................................................................... ......................................Dismissed without prejudice - 1 

Request for Stay of Board Order................... 2 ...................................Denied 

Pending Judicial Review 

Petition for Enforcement................................ 2 ...................................Compliance ordered, then 

of Board Order ..................................... ......................................dismissed - compliance found 

OSC Disciplinary Actions 

- Hatch Act: 

Federal/DC.................................................... 6 ...................................Suspension ordered - 1 

....................................................................... ......................................Remanded to ALJ - 1 

....................................................................... ......................................Settled - 4 

State/Local ...................................................18 ..................................Removal ordered - 2 

....................................................................... ......................................Settled - 1 

....................................................................... ......................................Dismissed - Jurisdiction - 15 

Withholding of Funds .................................... 1 ...................................Ordered funds withheld 

OPM Request for........................................... 1 ...................................Granted - Affirmed Previous 

Reconsideration ..................................... ......................................Decision 

Petition for Enforcement ............................... 1 ...................................Dismissed - compliance found of 

Board Order 

OSC Stay Requests: 

Initial Requests ............................................. 7 ...................................Granted - 6 

....................................................................... ......................................Operation of law - 1 

Requests for Extension ................................20 ..................................Granted - 19 

of Stay .................................................... ......................................Denied - 1 

OSC Motion for Termination ........................ 3 ...................................Granted of 

Stay 

Agency Motion for ......................................... 1 ...................................Denied 

Termination of Stay 

Actions Against ALJs .......................................... 4 ...................................Removal authorized - 1 

....................................................................... ......................................Settled - 3 

Requests for Regulation Review ........................ 3 ...................................Denied 

TOTAL....................................................................75 
SIGNIFICANT ACTIVITIES IN FISCAL YEAR 1994 

The Board completed action on 75 original jurisdiction cases in fiscal year 1994, more 

than twice the number in the previous fiscal year (37). The increase was attributable primarily to 

a significant increase in the number of Special Counsel cases—Hatch Act matters, disciplinary 

actions, and stay requests. Of the 75 original jurisdiction cases closed, 27 were Hatch Act 

cases, 10 were other Special Counsel disciplinary actions, 31 were Special Counsel stay 

requests and related matters, 4 were proposed actions against administrative law judges, and 3 

were requests to review an OPM regulation. 

Hatch Act Cases 

The Board issued decisions in 27 Hatch Act cases during the fiscal year. Six were new 

cases involving Federal or District of Columbia government employees, 18 were new cases 

involving state and local government employees who held positions at least partially federallyfunded, and the remaining 3 were matters related to Hatch Act decisions issued in prior fiscal 

years. This compares to 16 such decisions issued during the previous fiscal year. 

Of the six cases involving Federal or District of Columbia government employees, four 

resulted in settlement agreements being reached by the parties, one was remanded to the 

Administrative Law Judge, and in the remaining case, the Board found a violation of the Hatch 

Act and ordered a 60-day suspension. In the cases resolved by settlement agreements, the 

penalties varied. Two settlement agreements resulted in 45-day suspensions, one in a 30-day 

suspension, and one in a resignation. 

In two of the Hatch Act cases involving state and local government employees, the 

respondents were ordered removed from their positions. There was one settlement resulting in 

Federal funds equal to two years of the employee's salary at the time of the violation being 

withheld from the state agency. The remaining 15 cases were consolidated for a single 

decision, Special Counsel v. Bissell, et. al., & Public Service Commission of the State of 

Tennessee, which dismissed the cases for lack of jurisdiction. 

Of the three matters related to Hatch Act decisions issued in prior fiscal years, one 

resulted in a Board order that Federal funds be withheld from the county agency. Another 

decision granted OPM's motion for reconsideration, but affirmed the Board's previous decision, 

as modified, still finding no Hatch Act violation. The final case was a compliance matter, which 

the Board dismissed, finding that the agency had complied with the Board's order. 

Special Counsel Disciplinary Actions (non-Hatch Act) 

The Board issued 10 decisions in Special Counsel disciplinary actions during the fiscal 

year, six in initial cases and four in related matters. In four of the six initial cases, the Board 

ordered disciplinary action—a 60-day suspension in one, a 90-day suspension in one, and a 

$1,000 fine in the remaining two. One disciplinary action was dismissed without prejudice, and 

the remaining case was remanded to the Administrative Law Judge. 

The four decisions in related matters all involved two respondents against whom the 

Board had ordered disciplinary action. Two of the decisions denied the respondents' motions to 

stay the Board's order pending judicial review. The remaining two decisions were on 

compliance matters; the Board first ordered the respondents to comply with the Board's order 

and then dismissed the cases upon finding compliance. 
Special Counsel Stay Requests 

A total of 31 Special Counsel stay requests and related matters were processed during 

the fiscal year, twice the number processed during the previous year. The Special Counsel 

requested and received seven initial 45-day stays, all brought on behalf of whistleblowers. 

(Six of the stays were granted by a Board member, and one went into effect by operation of 

law.) 

The Special Counsel subsequently filed 20 requests for extension of a stay and three 

motions to terminate a stay. All but one of the extension requests were in whistleblower 

cases. The Board granted all of these requests except one in which the Special Counsel 

was seeking the fourth extension of a stay. In denying this extension request, the Board 

found no reasonable grounds for granting the request. Additionally, one termination of a stay 

was requested by an agency, and the Board denied the request. 

Actions Against Administrative Law Judges 

Of the four actions against administrative law judges decided by the Board during the 

fiscal year, three were settled. In the remaining case, the Board authorized the removal of 

the administrative law judge. 

Regulation Reviews 

The Board decided three requests for review of an Office of Personnel Management 

regulation or an agency's implementation of an OPM regulation. Two of the three requests 

were consolidated for decision, and all of the requests were denied. 

See Appendix B for summaries of significant Board decisions issued in original 

jurisdiction cases during fiscal year 1994. 

LITIGATION 

The Board defends its final decisions involving issues of jurisdiction and procedure 

before the U.S. Court of Appeals for the Federal Circuit, its primary reviewing court. The 

Board also defends many of the final decisions issued under its original jurisdiction authority 

before the Federal Circuit. Other active litigation includes cases in which OPM petitions for 

review in the Federal Circuit, subpoena enforcement cases, and discrimination cases filed in 

the various Federal district courts, where the Board is named as a defendant. In fiscal year 

1994, the Board defended 200 cases before the Federal Circuit, an 8 percent increase over 

the number of cases the Board defended in the previous fiscal year. 

In fiscal year 1994, the Federal Circuit issued its decision in King v. Lynch and Merit 

Systems Protection Board, resolving a question concerning its jurisdiction to consider an 

OPM petition for review of the Board's interpretation of discrimination law and the merits of 

an employee's claim of unlawful discrimination. Agreeing with the Board, the court ruled that 

it lacked jurisdiction to hear substantive discrimination issues. The decision preserves 

employees' right to a trial de novo on discrimination issues in Federal district courts. 
In Campbell v. Merit Systems Protection Board, the court affirmed a Board decision 

disciplining a Federal employee for violating the Hatch Act. Although the employee was 

listed on the ballot as an independent candidate, the court agreed with the Board that he 

was not truly independent where he received an endorsement and logistical support from a 

partisan political party and identified himself with that party in his campaign literature. 

Accordingly, he could not take advantage of the Hatch Act exception allowing employees to 

run as independent candidates in partisan elections in certain municipalities. 

Also decided by the court during the fiscal year was King v. Hillen and Merit Systems 

Protection Board. Relying on the Supreme Court's intervening decision in Harris v. Forklift 

Systems, Inc., the court remanded this case for the Board to apply a different standard to 

the agency's charge that the appellant committed sexual harassment in violation of Title VII 

of the Civil Rights Act. 

The Board also litigated two other noteworthy decisions that were still pending in the 

Federal Circuit at the end of the fiscal year. In the first case, Byrd and Rubinstein v. Merit 

Systems Protection Board, the Board disciplined employees for giving preferential treatment 

to an applicant based on political and personal favoritism. In the second case, King v. 

Jerome and Merit Systems Protection Board, the Board dismissed the agency's petition for 

review from an initial decision reversing the employee's removal, finding that the agency's 

geographical reassignment of the employee pending full Board review was a bad faith 

attempt to comply with the interim relief order. (The Board's decision was subsequently 

reversed by the Federal Circuit, and a petition for rehearing was filed.) 

During fiscal year 1994, the Board monitored approximately 700 cases in the Federal 

Circuit involving appeals of decisions issued by the Board under its appellate jurisdiction. 

Although the Department of Justice defends the employing agency against whom the appeal 

is filed, the Board monitors this litigation, evaluating the case to determine if Board 

intervention is appropriate, responding to inquiries, assisting in drafting briefs, and analyzing 

the court's decisions in these cases. 

See Appendix C for summaries of other significant litigation activities of the Board 

during fiscal year 1994. 
MERIT SYSTEMS STUDIES AND REVIEWS OF OPM SIGNIFICANT ACTIONS 

THE STATUTORY STUDIES FUNCTION 

The CSRA assigned the Board, in addition to its adjudicatory functions, the 

responsibilities of reviewing the significant actions of OPM and conducting studies of the civil 

service and other merit systems in the Executive Branch. The Board's legislative mandate 

with respect to its OPM oversight and studies functions focuses on ensuring compliance with 

the merit system principles and keeping the merit systems free from prohibited personnel 

practices. 

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, computer-based data analysis, and reviews of 

secondary source materials. 

The Board's reports on the results of its studies are addressed to the President and the 

Congress, as required by law, and also are made available to a large secondary audience of 

Federal agency officials, employee and public interest groups, labor unions, academicians, 

and other individuals and organizations with an interest in public personnel administration. 

The impact of these studies is augmented through an active outreach program consisting of 

public presentations, on-site and telephone consultations requested by Federal agency 

officials, and papers and articles published in the professional literature. 

FISCAL YEAR 1994 STUDIES 

During fiscal year 1994, the Board published five studies of important civil service 

issues. These studies are: 

Temporary Federal Employment: In Search of Flexibility and Fairness - A report on the 

significant actions of the U.S. Office of Personnel Management, examining current and 

potential changes in temporary employment policy in the Federal Government. 

Working for America: An Update - A study analyzing the results of the Board's triennial 

survey of Federal employees about their perspectives on and experiences with the merit 

principles. 

Entering Professional Positions in the Federal Government - A study of the key 

mechanisms by which Federal agencies select employees for professional and administrative 

positions in grades GS-5 through GS-15, with an emphasis on the impact these mechanisms 

have on the diversity and quality of the workforce. 

Evolving Workforce Demographics: Federal Agency Action and Reaction - A report 

examining several important predictions made in Workforce 2000 and its Federal Government 

counterpart, Civil Service 2000, to see which changes have actually materialized, which have 

been overtaken by events, and what Federal agencies are doing to address them. 
Whistleblowing in the Federal Government: An Update - A study of Federal employees' 

observations and reports of perceived illegal or wasteful activities in the Federal Government. 

This survey-based study updates a 1983 Board report on whistleblowing in the Federal 

Government. 

In addition, the following studies were in progress during the fiscal year, and reports 

were expected to be released during fiscal year 1995: 

Alternative Dispute Resolution in Employment-Related Disputes - A study of the 

increasing use of alternative dispute resolution (ADR) techniques by Federal agencies, 

exploring the relationships between agency use of ADR in employment-related disputes, due 

process rights of employees, and employee morale. 

Looking Like America: Career Advancement of Minorities in the Federal Government - 

This study, based on statistical material and employee surveys, seeks to identify perceived 

and actual barriers to the advancement of minorities within the Federal Government and the 

means of overcoming those barriers. 

Improving State and Federal Human Resources Management: Shared Needs and 

Objectives - This study identifies innovative human resources practices in state governments 

and discusses their potential applicability to the Federal Government. 

Leadership for Change: Human Resources Development in the Federal Government - 

This study looks at the current state of training and development efforts for the Federal 

workforce and focuses on the challenges for developing the workforce skills of the future. 

Sexual Harassment in the Federal Workplace. Trends, Progress, and Continuing 

Challenges -This study analyzes the results of the Board's third survey of Federal employees 

on the issue of sexual harassment. It updates the Board's 1981 and 1988 surveys on this 

subject, providing a look at the progress being made to stop sexual harassment in the Federal 

workplace. 

Accountability for Federal Personnel Management: A Symposium - A report on the 

deliberations, conclusions, and recommendations from a Board-sponsored symposium 

attended by senior policy officials and representatives from congressional offices, employee 

unions, Federal agencies, professional associations, and academia. 

Annette Johnson, Office of Policy and Evaluation
IMPACT OF BOARD STUDIES 

The Board's reports and studies continue to have an impact in all major areas of 

human resources management in the Federal Government. The studies are regularly cited in 

other publications on human resources and public administration issues, including the report 

of the National Performance Review and several of the NPR's accompanying reports. The 

Board's studies are also used as teaching aids in a number of colleges and universities, 

including American University, the University of Southern California, Indiana University, and 

the State University of New York at Albany. 

The impact, visibility, and credibility of the Board's studies are reflected in frequent and 

positive media coverage and in the numerous requests for copies of the reports. A more 

important indicator, perhaps, is the increasing frequency with which the Board's studies are 

cited as justification for constructive actions taken to improve the civil service system. 

The Board's Office of Policy and Evaluation was the 1994 recipient of the Elmer B. 

Staats Award for Accountability in Government. This award is presented annually by the 

National Capital Area Chapter of the American Society for Public Administration to the 

individual or organization that has provided the greatest contribution to the furtherance of 

accountability for good government. The award citation noted that the office has "helped to 

redefine boundaries and focus debate with insightful governmentwide examination of such 

basic issues as the changing roles of OPM and the Federal personnel offices and the effect of 

current recruitment, examination, and selection practices on Federal workforce quality and 

diversity...[and] has been a forceful advocate of accountability for effective human resources 

management consistent with the merit system principles." 

See Appendix D for summaries of the reports published during fiscal year 1994. 

Office of Policy and Evaluation, recipients of the 1994 Elmer B. Staats Award for Accountability in 

Government. 
OUTREACH ACTIVITIES 

The Board members, headquarters staff, and regional/field office staff conducted or 

participated in over 200 outreach activities to major constituencies in fiscal year 1994. These 

activities included addressing groups, participating in seminars and conferences, and 

conducting training programs designed to further an understanding of the Board's policies and 

procedures, developments in Board case law, and important issues in Federal personnel law, 

public administration, and human resources management. The Board's outreach program also 

encompasses its publications, published articles, the International Visitors Program, and its 

participation in interagency organizations. 

PERSONAL APPEARANCES, MEETINGS, AND ARTICLES 

Approximately half of the outreach appearances during the fiscal year were made by the 

regional directors, administrative judges, and headquarters regional operations staff. Audiences 

for these appearances numbered from 10 to 400, with a combined total audience in the 

thousands. In addition to conducting mock hearings designed to familiarize participants with 

Board practices and procedures, regional and field office personnel addressed such topics as 

significant Board and Federal Circuit decisions, the Whistleblower Protection Act, discrimination 

cases and firm choice, and the Board's settlement program. 

The Board members and headquarters attorneys participated in outreach activities to 

inform agencies, employee unions, private practitioners, and other interested parties about the 

Board, its authorities, jurisdiction, practices, and procedures. Topics addressed included recent 

developments in Board and Federal Circuit case law, emerging issues at the Board, the appeals 

process, and alternative dispute resolution. 

In Spring 1994, the Federal Circuit Bar Journal, published an article by Vice Chairman 

Parks, "The Merit Systems Protection Board as a Model Forum." The article was a revised 

version of a speech given by the Vice Chairman at the Federal Circuit Bar Association miniconference in February 1994. 

The Board participated in the annual Federal Circuit Judicial Conference in June 1994 

and sponsored a breakout session on Board law. In August 1994, the Board again participated 

in the Federal Dispute Resolution Conference with EEOC, OPM, the Federal Labor Relations 

Authority (FLRA), the Federal Mediation and Conciliation Service (FMCS), and the Office of 

Special Counsel. 

The studies staff participated in conferences, seminars, and symposia to discuss human 

resources management issues and to report on the results and implications of the Board's 

studies and reviews of OPM significant actions. In addition to addressing the findings and 

recommendations of recently issued reports, the studies staff discussed studies in progress, 

including the latest update of the Board's survey of sexual harassment in the Federal workplace 

and the glass ceiling as it affects minorities. A number of the outreach appearances focused on 

topics related to the recommendations of the National Performance Review, including the future 

of human resources management in the Federal Government. Members of the studies staff also 

published a number of papers and articles based on the Board's studies. Members of the 

studies staff also served on NPR task groups focused on such issues as measurements of 

customer satisfaction, development of alternative guidance to replace the Federal Personnel 

Manual, and development of new approaches to performance management. 
INTERNATIONAL VISITORS PROGRAM 

The Board's international visitors program 

is conducted at Board headquarters by the Board 

members and staff of the Human Resources 

Management Division. The program is responsive 

to requests from foreign visitors who wish to learn 

about merit system principles and the Board's 

practices and procedures. During fiscal year 1994, the Board members and headquarters staff 

made presentations to approximately 25 visitors from a number of countries, including 

Zimbabwe, Senegal, Taiwan, Bangladesh, and Japan. Many of these individuals visited the 

Board at a time when their countries were in the process of developing or revising an appeals 

system. 

Alice Begemann and Sylvia Moore, Office of the 

Clerk of the Board 

REPRESENTATION IN ORGANIZATIONS 

The Merit Systems Protection Board is an active participant in the Small Agency Council 

(SAC), a voluntary association of Federal agencies that employ fewer than 6,000 people. The 

Board is also represented on the Public Employees Roundtable, the President's Council on 

Management Improvement, and the Interagency Committee on Voluntarism. 

Vice Chairman Parks serves as President of Executive Women in Government. She also 

serves as a Board Member on the Public Employees Roundtable and the Coalition for Effective 

Change, and is an appointed member of the National Council of the Federal Bar Association. 

The Board's Director of Planning and Resource Management Services represents MSPB 

as a member of the Board of Directors of the National Capital Area Cooperative Administrative 

Support Units (CASU). This Board coordinates the efforts of agencies to combine their administrative resources to take advantage of economies of scale. 

Regional directors, administrative judges, and other personnel in several regional offices 

serve on the Federal Executive Board (FEB) and FEB committees in their cities. In addition, 

several regional directors serve as Board members of the CASUs in their cities. Board attorneys 

are active participants in a number of bar associations, particularly the Federal Circuit Bar 

Association. Members of the studies staff are actively involved in national "good government" 

organizations such as the National Academy of Public Administration (NAPA), the American 

Society for Public Administration (ASPA), and the International Personnel Management 

Association (IPMA). 
FINANCIAL STATEMENT 

The income and expenses of the Merit Systems Protection Board for fiscal year 1994 

(October 1, 1993, through September 30, 1994) are shown below. All figures are in 

thousands of dollars. 

INCOME 

Appropriations 24,674 

Reimbursements - 

Civil Service Retirement 

& Disability Trust Fund 1,989 

Reimbursements - Other (interagency 

agreement and reimbursable detail) 15 

Total income 26,678 

EXPENSES 

Direct obligations: 

Personnel compensation 

Full-time permanent 15,493 

Other than full-time permanent 1,117 

Other personnel compensation 328 

Subtotal, personnel compensation 16,938 Doug Wade, Financial and Administrative 

Management Division 

Personnel benefits 2,813 

Benefits - former employees 179 

Travel of persons 474 

Transportation of things 46 

Rental payment to GSA 2,188 

Communications, utilities, 

and miscellaneous charges 438 

Printing and reproduction 48 

Other services 1,165 

Supplies and materials 186 

Equipment 140 

Subtotal, direct obligations 24,615 

Reimbursable obligations 2,004 

Total obligations 26,619 

BALANCE 59 
APPENDIX A - SIGNIFICANT BOARD DECISIONS APPELLATE JURISDICTION CASES 

This appendix contains summaries of significant appellate jurisdiction cases decided by 

the Board during fiscal year 1994. 

Board decisions are published in West Publishing Company's United States Merit 

Systems Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

Board decisions and weekly summaries of significant decisions are available on the 

Government Printing Office's Federal Bulletin Board. Dial 202-512-1387 via computer modem, 

and go to the MSPB LIBRARY. Assistance is available from GPO by calling 202-512-1524. 

Certain significant Board decisions are also available on the OPM Mainstreet BBS, 202-606-

4800. 

WHISTLEBLOWER PROTECTION ACT 

Shively v. Department of the Army, 59 M.S.P.R. 531 (1993) 

Disclosures made as a conduit are protected by 5 U.S.C. § 2302(b)(8) as long as the 

appellant meets the reasonable belief test of the law as to them. 

Carter v. Department of the Army, 62 M.S.P.R. 393 (1994) 

A reduction in force is a personnel action for purposes of an IRA appeal if it is taken for 

reasons personal to the employee. An agency's failure to waive qualification requirements for a 

position in which an employee seeks to be placed during a RIF, resulting in the employee's 

separation, is also a personnel action. Accordingly, the Board's earlier decision in this appeal, 

56 M.S.P.R. 321, which held to the contrary on these issues, was reversed. 

Geyer v. Department of Justice, 63 M.S.P.R. 13 (1994) 

This decision sets the rule on what aspects of an IRA appeal are jurisdictional. The 

Board held that to establish jurisdiction, the appellant must show by preponderant evidence 

that he or she made a disclosure under 5 U.S.C. § 2302(b)(8); that the agency took or failed to 

take, or threatened to take or fail to take, a personnel action after July 9, 1989; and that he or 

she exhausted the remedy before the Office of Special Counsel. On related matters, the Board 

also held that communications may be protected even if they are only meant to be helpful or to 

provide guidance; that the failure of agency officials to recognize that disclosures are covered 

would not remove them from coverage; and that even if a disclosure discusses matters already 

known throughout the agency, it may still be protected. 

Caster & Manning v. Department of the Army, 62 M.S.P.R. 436 (1994) 

In this case, the Board applied the test approved by the Federal Circuit in Eidmann v. 

MSPB for use in a Special Counsel disciplinary action against a person accused of committing 

a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) to an adverse action brought by 

the employing agency against one of its officials for the same reason. A recommendation to an 

employee's supervisor that the employee be removed suffices as a basis for a (b)(8) action, 

even where no action is in fact taken against the employee and the official is not in the 

employee's chain of command. 
Lewis v. Department of the Army, 63 M.S.P.R. 119 (1994) 

Concluding that it may not adjudicate the merits of a personnel action that is not 

otherwise appealable to it, the Board reached the question of how.deeply it will inquire into the 

"merits" of such an action in the course of an IRA. It held that it will not decide the case as if it 

concerned an appealable issue, but that it would review the agency's stated reasons for the 

action in light of such factors as the bases for the deciding official's assessment of the appellant 

and what else supports the action. 

INTERIM RELIEF 

Jerome v. Small Business Administration & Office of Personnel Management, 59 

M.S.P.R. 134 (1993) 

On reconsideration, the Board reaffirmed its earlier decision in this appeal and held that 

to enforce compliance with its interim relief orders, it must examine the bona fides of the 

agency's undue disruption determination if an appellant makes a prima facie case of bad faith. 

Where the appellant makes such a showing, the agency must present evidence to rebut it; a 

showing that the agency's reason for not returning the appellant to the workplace is pretextual 

constitutes a showing of bad faith which, if unrebutted, proves noncompliance with the interim 

relief order. (NOTE: The Board's decision was reversed by the U.S. Court of Appeals for the 

Federal Circuit. King v. Jerome & MSPB, No. 94-3161 (Fed. Cir. 12/7/ 94). The Board filed a 

petition for rehearing.) 

Edwards v. Department of the Navy, 62 M.S.P.R. 174 (1994) 

When interim relief is erroneously ordered because the appellant has already served the 

suspension that is the subject of the appeal by the time the initial decision is issued, and the 

agency attempts to comply by canceling the suspension, the Board will not dismiss its petition 

for review as moot despite the retroactivity of the relief granted. 

McLaughlin v. Office of Personnel Management & U.S. Postal Service, 62 M.S.P.R. 536 

(1994) 

A removal action that was reversed by the administrative judge but then sustained by the 

Board is effective as of its original effective date, despite the issuance of an interim relief order. 

The interim relief order ends on the date of issuance of the Board's final decision on a petition 

for review, whether or not the employee was returned to duty during that period. Termination of 

interim relief upon the issuance of a final Board decision does not require that the appellant be 

provided any due process rights at that time. 
BOARD JURISDICTION 

Robinson, et al., v. U.S. Postal Service & Office of Personnel Management, 63 M.S.P.R. 

307 (1994) 

White v. U.S. Postal Service & Office of Personnel Management, 63 M.S.P.R. 299 

(1994) 

The Postal Service "restructuring" constitutes a reorganization, and demotions effected 

by the agency under it are reduction-in-force actions. RIFs are appealable by veterans 

preference eligibles despite receipt of retained grade and pay, and the acceptance of a job 

offered at a lower grade after the employee is told that he would not be retained in his position, 

and with accompanying warnings about the effect of declination, is not voluntary; thus, the 

acceptance of the job is not made nonappealable for that reason. The decisions also defined a 

demotion and found that receipt of retained grade and pay may render a demotion 

nonappealable, but it does not make it other than a demotion. 

Marcoux v. U.S. Postal Service, 63 M.S.P.R. 373 (1994) 

Assignments made during the Postal Service restructuring are in the nature of RIF 

actions, and as such they cannot be appealed as adverse actions. Thus, non-preference 

eligibles in the excepted service, who may not appeal RIFs to the Board, may not appeal their 

assignments during the restructuring. 

Dixon, et al., v. U.S. Postal Service, 64 M.S.P.R. 445 (1994) 

A detail at the same grade, pay, and tenure as the appellant's official position is not 

appealable. Even if the length of the detail violates the agency's rules, that does not, alone, 

provide a basis on which the Board may assert jurisdiction. Thus, Postal Service employees 

who were detailed to placement centers during the 1992-1993 restructuring may not appeal 

those actions to the Board as RIFs. 

Rivas v. US. Postal Service, 61 M.S.P.R. 121 (1994) 

An appellant's absence from the workplace is involuntary, and therefore a disciplinary 

suspension within the Board's jurisdiction, where the appellant is placed on enforced leave for 

more than 14 days pending inquiry into his physical ability to perform. The Board overruled its 

prior decisions to the contrary when it held that the availability of work within the appellant's 

restrictions may be relevant to the merits of a decision to suspend an employee, but it is not 

relevant to the jurisdictional issue. Rather, it found that the dispositive question on jurisdiction is 

whether the appellant or the agency initiated the absence. 

TIMELINESS 

Sanford v. Department of Defense, 61 M.S.P.R. 207 (1994) 

Where an appellant mistakenly files an appeal with the employing agency and then 

promptly corrects the error upon learning of it, the appellant has shown good cause for the 

delay, even where the appellant is represented. 
Gaydon v. U.S. Postal Service, 62 M.S.P.R. 198 (1994) 

The Board adopted the "mailbox rule," generally applied in the law, to nonreceipt by the 

Board of filings. The rule is that when a properly addressed and stamped letter is shown by 

preponderant evidence to have been placed in the mail stream in a timely manner, it will be 

treated as having been filed on that date, even where the Board never received it. 

Rahman v. Office of Personnel Management, 63 M.S.P.R. 219 (1994) 

This decision marks a change in the Board's rules for timeliness in connection with its 

petition for review procedures. It held that where an appellant does not receive an order from 

the Clerk of the Board until after the time for reply has passed, the appellant has been 

prevented by circumstances beyond his or her control from timely filing, and that due diligence 

is exercised where the appellant files a response within as many days from receipt as the 

notice originally allowed to file the response. 

ADVERSE ACTIONS 

Fuller v. Department of the Navy, 60 M.S.P.R. 187 (1993) 

In this decision, the Board set out rules for proof of a self-defense claim. Among other 

things, it held that to prove a claim of self-defense, an appellant must show that she used only 

so much force as was reasonably necessary to free herself from an unwanted grasp. 

Harris v. Department of the Air Force, 62 M.S.P.R. 524 (1994) 

The Board here discussed the limits of agency authority to order psychiatric fitness for 

duty examinations. It held that, under 5 CFR 339.301(e)(1), an agency may order attendance at 

a psychiatric examination only when a proper physical examination indicates no physical 

reasons for behavior that may affect the safety of the employee or others, or where medical 

standards for the job set psychiatric requirements. If neither exception is met, an agency may 

not discipline an employee for failure to report or cooperate. 

DISCRIMINATION 

Carter v. Small Business Administration, 61 M.S.P.R. 156 (1994) 

Under the Supreme Court's decision in St. Mary's Honor Center v. Hicks, to meet its 

burden once an appellant makes a prima facie case of intentional discrimination, an agency 

need only introduce evidence which, if taken as true, would permit a conclusion that there were 

nondiscriminatory reasons for its action, even where it failed to prove its charges. The 

appellant, therefore, must prove not only that the asserted reason was false, but that 

discrimination was the real reason for the action. 

Johnson v. Defense Logistics Agency, 61 M.S.P.R. 601 (1994) 

Under the Supreme Court's decision in Price-Waterhouse v. Hopkins, where an 

appellant proves by direct rather than circumstantial evidence that membership in a protected 

category was a substantial factor in the appealed action, the burdens of production and 

persuasion shift to the agency to show that it had a legitimate motive sufficient, standing alone, 

to induce it to make the same decision. 
Wilson v. Department of Veterans Affairs, 63 M.S.P.R. 63 (1994) 

The wording changes in the Rehabilitation Act, from variants of "handicap" to those of 

"disability," were not intended to reflect any definitional changes. 

McConnell v. Department of the Army, 61 M.S.P.R. 163 (1994) 

The requirement to accommodate through reassignment arises when an employee 

establishes his or her status as a qualified employee with a disability. An agency that receives a 

request for reassignment to accommodate an employee's disability is entitled to a reasonable 

period of time to make an independent assessment of the evidence and the need for 

accommodation. It need not put all other personnel actions on hold while it is doing so, even 

those involving the position the appellant seeks. Once the appellant shows that he or she is a 

qualified person with a disability and can perform the essential functions of the job he or she 

seeks, the agency is entitled to a reasonable period to evaluate its options. 

Hurst v. Department of the Navy, 61 M.S.P.R. 277 (1994) 

In its decision on this case, the Board deferred to the EEOC's position and concluded 

that an appellant with a disability is entitled to accommodation by reassignment only to 

components of the agency served by the same appointing authority. The Board modified its 

precedent accordingly. 

Hocker v. Department of Transportation, 63 M.S.P.R. 497 (1994) 

An appellant who prevails before the Board on a finding of discrimination may recover 

compensatory damages from an agency pursuant to the Civil Rights Act of 1991, but that law 

does not provide for punitive damage awards against a Government agency. The CRA will not 

be applied retroactively. Requests for compensatory damages must be made in connection 

with the merits appeal and not, for the first time, in a petition for enforcement, except where the 

failure to comply itself constitutes a separate incident of discrimination. The CRA allows an 

award based on either intentional discrimination or failure to accommodate a disability; as to 

the latter, an award will not be made upon a showing by the agency of good faith efforts to 

accommodate, in consultation with the disabled person. 

DUE PROCESS 

Kriner v. Department of the Navy, 61 M.S.P.R. 526 (1994) 

To assure due process, when an agency indefinitely suspends an employee because 

the employee lost access to security information or areas, it must ensure that either in the 

advance notice of the indefinite suspension or in the earlier access denial, the appellant was 

notified of the cause that led to the access decision and was allowed to respond to it. 

RETIREMENT 

Evans v. Office of Personnel Management, 59 M.S.P.R. 94 (1993) 

5 U.S.C. § 8345(j), awarding annuities to former spouses of Federal employees, was 

remedial legislation, passed to recognize the contribution of non-working spouses who could 

not previously have received pension benefits. 5 U.S.C. § 8345(d), allowing waiver of a civil 

service annuity, was passed for the limited purpose of assuring that an annuitant was not 

deprived of other annuities because of the size of the annuitant's civil service pension. To 

interpret the law so as to give effect to both sections, an annuitant may be allowed to waive 
only the annuitant's portion of an annuity, not that to which a former spouse is entitled as a 

result of a court-ordered apportionment. 

SETTLEMENT 

Stipp v. Department of the Army, 61 M.S.P.R. 415 (1994) 

Because the Back Pay Act sets the limit on back pay for all Federal employment cases 

to which it applies, an agency's settlement promise to pay an amount that is contrary to the 

Act's requirements is illegal and cannot be enforced, so the agreement must be set aside. 

Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580 (1994) 

A party may challenge the validity of a settlement before the Board, even if it is not 

entered into the record for enforcement. The Board's earlier decisions to the contrary are 

overruled. 

ATTORNEY FEES 

Bonggat v. Department of the Navy, 59 M.S.P.R. 175 (1993) 

An appellant who prevails on a whistleblower reprisal claim is entitled to an award of 

costs incurred directly, in addition to reimbursement for attorney fees. Any prior holdings to the 

contrary are reversed. 

Whaley v. U S. Postal Service, 61 M.S.P.R. 340 (1994) 

Where there has been noncompliance with a material term of a settlement agreement, 

entitling an appellant to file a petition for enforcement, the appellant is the prevailing party for 

fee purposes. The appellant has no burden to prove what the agency would have done to 

comply with the settlement in the absence of the petition for enforcement. The Board also found 

that a fee award is warranted in the interest of justice where the agency delayed compliance 

beyond the date agreed upon in the parties' settlement. 
APPENDIX B - SIGNIFICANT BOARD DECISIONS ORIGINAL JURISDICTION 

CASES 

This appendix contains summaries of significant original jurisdiction cases decided by 

the Board during fiscal year 1994. 

Board decisions are published in West Publishing Company's United States Merit 

Systems Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

Board decisions and weekly summaries of significant decisions are available on the 

Government Printing Office's Federal Bulletin Board. Dial 202-512-1387 via computer modem, 

and go to the MSPB LIBRARY. Assistance is available from GPO by calling 202-512-1524. 

Certain significant Board decisions are also available on the OPM Mainstreet BBS, 202-606-

4800. 

SPECIAL COUNSEL DISCIPLINARY ACTIONS - OTHER THAN HATCH ACT 

Special Counsel v. Byrd and Rubinstein, 59 M.S.P.R. 561 (1993) 

The Board held that Byrd and Rubinstein committed prohibited personnel practices in 

violation of 5 U.S.C. § 2203(b)(6) and (b)(11) by giving an applicant for employment an 

unauthorized preference when they hired her through the use of the agency's temporary limited 

appointment (TLA) authority, and for violating laws, rules and regulations implementing or 

directly concerning merit system principles in connection with this hiring action. The Board 

concluded that the respondents' actions in utilizing the TLA authority had no other purpose but 

to limit the scope of the competition in order to improve the applicant's chances for 

employment. The Board also concluded that the respondents' use of the TLA was inappropriate 

because there was no administrative need for temporary employment for the permanent 

position the applicant filled. The Board also found that this same hiring action created the 

appearance of giving preferential treatment in violation of 5 CFR 735.201a(b). Taking into 

account that Byrd had retired after the complaint was filed, the Board fined Byrd $1,000 and 

ordered Rubinstein suspended for 60 days. 

Special Counsel v. Brown and Nelson, 61 M.S.P.R. 559 (1994) 

The Office of Special Counsel filed a seven-count disciplinary action complaint against 

two employees alleging improper handling of an employment application and improper 

selection for a position. The Board held that: (1) preponderant evidence supported the charge 

of influencing an applicant to withdraw from competition to injure his employment prospects and 

to improve the employment prospects of another applicant in violation of 5 U.S.C. § 2302(b)(5); 

(2) preponderant evidence supported the charge of failing to timely correct regulatory violations 

concerning the rights of displaced employees in violation of 5 U.S.C. § 2302(b)(11); and (3) 

preponderant evidence supported the charge of improperly reclassifying a position to improve 

an employee's chances for appointment to that position in violation of 5 U.S.C. § 2302(b)(6). 

The Board found that the violations warranted a 90-day suspension for respondent Nelson and 

a fine of $1,000 for respondent Brown, who had retired. 
HATCH ACT - STATE AND LOCAL GOVERNMENT EMPLOYEES 

Special Counsel v. Bissell, et. al., & Public Service Commission of the State of 

Tennessee, 61 M.S.P.R. 637 (1994) 

The Board held that the provisions of 5 U.S.C. § 1501 et seq. (the "State Hatch Act") 

were not applicable to the Tennessee Public Service Commission (TPSC) and its employees 

because the TPSC is not an agency or department of the executive branch of the State of 

Tennessee. Following Bowsher v. Synar, 478 U.S. 714 (1986), the Board found that the critical 

factor to examine in determining to which branch an agency belongs is not what functions that 

agency performs, but rather which branch of the State government controls the agency and/or 

how the State has perceived that agency's place in State government. Because the Office of 

Special Counsel failed to meet its burden to establish Board jurisdiction over the TPSC and its 

employees, the Board dismissed the case against the agency and 15 employee respondents 

for lack of jurisdiction. 

Special Counsel v. Murdock & Onondaga County Department of Social Services, 61 

M.S.P.R. 403 (1994) 

The respondent, while employed by the state of New York performing duties in 

connection with federally-funded activities, participated in a partisan election. The Board found 

that the respondent received four warnings that her candidacy might be a violation of the Hatch 

Act, but she did not attempt to get a definitive ruling from the Office of Special Counsel, despite 

her admission that she was aware of the Office. Rather, the respondent stated to her 

supervisor that she would "take her chances" and run anyway. In these circumstances, the 

Board found that the respondent's violation warranted removal under 5 U.S.C. § 1505. 

Special Counsel v. Bianchi & Allegheny County Department of Development & 

Allegheny County Department of Tax Claims and Revenue, 59 M.S.P.R. 282 (1993) 

The Board granted the Special Counsel's request for an order directing the withholding 

of Federal funds from the Allegheny County, Pennsylvania, Department of Development. In an 

earlier decision, 57 M.S.P.R. 627 (1993), the Board ordered Allegheny County to remove Mr. 

Bianchi from his job because he engaged in political activity prohibited by the Hatch Act. 

Allegheny County declined to remove Mr. Bianchi and moved for a stay pending judicial review. 

The Board denied the motion for stay and, pursuant to 5 U.S.C. § 1506, ordered the Department of Housing and Urban Development to withhold Federal funds from Allegheny County in 

an amount equal to two times Mr. Bianchi's annual salary. 

HATCH ACT - FEDERAL GOVERNMENT EMPLOYEES 

Special Counsel v. Narcisse, 60 M.S.P.R. 294 (1994) 

The Board held that the respondent's polling activity did not violate the Hatch Act as it 

did not constitute taking "an active part in political management or in political campaigns" under 

5 U.S.C. § 7324(a)(2). The Board found that the regulations at 5 CFR 733.111-122 superseded 

Form 1236 of September 1939, defined what is meant as prohibited campaigning, and did not 

prohibit the respondent's neutral polling for a partisan political organization. The Board also 

held that the respondent's remarks during a television interview that was not initiated by the 

respondent were not violative of the Hatch Act. 
OSC STAY REQUESTS AND RELATED CASES 

Special Counsel v. U.S. Fish and Wildlife Service, Department of the Interior 

(Peitzmeier-Romano), 64 M.S.P.R. 413 (1994) 

The Board denied the Special Counsel's request for an extension of an initial stay. The 

stay was initially granted based on the Special Counsel's position that there were reasonable 

grounds to believe that the agency terminated Ms. Peitzmeier-Romano during her probationary 

period in violation of 5 U.S.C. §§ 2302(b)(8) and/ or (b)(9). The Board found that the stay extension request was clearly unreasonable as it was based on bare allegations. In addition, the 

case had been pending for almost eleven months and the initial stay had already been 

extended three times. 

ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES 

Office of Hearing and Appeals, Social Security Administration v. Whittlesey, 59 M.S.P.R. 

684 (1993) 

The Board adopted the Administrative Law Judge's recommended decision finding that 

the agency showed good cause to remove respondent Whittlesey from his administrative law 

judge position. The Board found that the agency proved its charges that Whittlesey violated 

agency rules and a settlement agreement by engaging in unauthorized time and attendance 

practices. It rejected Whittlesey's contentions that the agency's prohibition against outside legal 

practice should have been excluded on the ground it was obtained in violation of his 

constitutional right to privacy. The Board also rejected an age discrimination defense, claims of 

disparate treatment, and allegations that the MSPB's Administrative Law Judge was biased. 

REGULATION REVIEWS 

Weir v. Office of Personnel Management, 62 M.S.P.R. 91 (1994) 

The petitioner sought review of an Office of Personnel Management regulation and a 

related Federal Personnel Manual provision assigning preference points to certain preference 

eligible veterans in examinations for administrative law judge positions. The Board held that an 

allegedly unauthorized preference which improves the appointment prospects of a class of 

veterans is insufficient to establish a prohibited personnel practice claim under 5 U.S.C. § 

2302(b)(6), which specifies that the unauthorized preference be directed to a "particular 

person." Because the petitioner failed to make out a prohibited personnel practice claim, the 

Board declined to exercise its limited jurisdiction to grant review. 

Brooks and Dunn v. Office of Personnel Management, 59 M.S.P.R. 307 (1993) 

In this case the Board held that for purposes of a regulation review, the Federal 

Personnel Manual is a regulation because it is an "interpretive rule" not subject to publication in 

the Federal Register. The Board then considered OPM's interpretation of 5 U.S.C. § 

6303(a)(3)(B), pertaining to service credit for annual leave for military service, as implemented 

in FPM 296-33, S6-1, 7, 8. That FPM provision construed 5 U.S.C. § 6303(a)(3)(B) as providing 

that retirees of the uniformed services shall receive service credit for active duty "during a war, 

or in a campaign or expedition for which a campaign badge has been authorized," to mean only 

service in World Wars I and II. The Board concluded that petitioners had failed to show that 

OPM's interpretation of the statutory provision was incorrect and accordingly had failed to show 

that the FPM provision violates 5 U.S.C. § 2301(b)(2) relating to fair and equitable treatment of 

Federal employees. 
APPENDIX C - SIGNIFICANT LITIGATION 

Significant litigation involving the Board during fiscal year 1994 included the following: 

APPEALABLE ACTIONS 

Employment Practice 

Vesser v. Office of Personnel Management, 29 F.3d 600 (Fed. Cir. 1994) 

The appellant, whose name was removed from the register of eligible administrative law 

judge candidates because of his annuitant status, was subject to an employment practice within 

the Board's jurisdiction. The court also found that the appellant was improperly disqualified for 

appointment as an administrative law judge. 

Indefinite Suspension 

Pararas-Carayannis v. Department of Commerce, 9 F.3d 955 (Fed. Cir. 1993) 

A criminal charge, detailed findings of a criminal investigation, and a grand jury indictment 

establish reasonable cause to believe that an employee committed a crime for which he may be 

subject to imprisonment and, therefore, supports an indefinite suspension. An employee's 

voluntary use of Government property and time to carry on illegal activities establishes a nexus 

between the misconduct and Government employment. 

Discriminatory Statements 

Holland v. Department of the Air Force, 31 F.3d 1118 (Fed. Cir. 1994) 

A supervisor's statements of a sexist nature, without evidence that the supervisor took a 

discriminatory personnel action, are insufficient to support a charge that the supervisor violated 

the agency's EEO policies. 

Reemployment Priority 

Chudson v. Environmental Protection Agency, 17 F.3d 380 (Fed. Cir. 1994) 

An agency may appoint a person who is not on the agency reemployment priority list to a 

vacant position over a person who is on the list to avoid undue interruption of agency activities 

pursuant to 5 CFR 330.207(d). 

Restoration to Duty Following Military Service 

Nichols v. Department of Veterans Affairs, 11 F.3d 160 (Fed. Cir. 1993) 

A returning veteran has the right to be restored to the position he left for active military 

duty or to one with the same seniority, status, and pay. 

Security Clearance Issues 

Brockmann v. Department of the Air Force, 27 F.3d 544 (Fed. Cir. 1994) 

When an employee is removed based on the loss of his or her security clearance and 

does not raise a colorable constitutional claim, the Board's review is limited to determining 

whether the employee received procedural due process, as provided by Department of Navy v. 

Egan, 484 U.S. 518 (1988). 
BOARD PROCEDURES & TIMELINESS 

Interim Relief 

DeLaughter v. United States Postal Service, 3 F.3d 1522 (Fed. Cir. 1993) 

Where an agency does not return the employee to work in accordance with an order 

granting interim relief, and does not make a specific determination that it would be unduly 

disruptive to do so, the Board must dismiss the agency's petition for review for failure to comply 

with the statutory interim relief provisions. 

Timeliness 

Walls v. Merit Systems Protection Board, 29 F.3d 1578 (Fed. Cir. 1994) 

The length of the delay is an important factor to be considered in determining whether 

good cause for untimely filing is shown; a minimal delay may indicate not only an absence of 

negligence but also that an appellant demonstrated due diligence and ordinary prudence in filing 

his or her appeal. 

Loui v. Merit Systems Protection Board, 25 F.3d 1011 (Fed. Cir. 1994) 

Where an agency does not deliver the decision notice to the employee until after the 

effective date of the personnel action, the employee's time to appeal runs from the date the 

employee receives the decision letter. 

Anderson v. Department of Justice, 999 F.2d 532 (Fed. Cir. 1993) 

The petitioner's hospitalization and an inability, despite due diligence, to contact his legal 

representative demonstrated good cause to excuse his untimely filed appeal, which was one 

day late. 

INDIVIDUAL RIGHT OF ACTION 

Contributing Factor Analysis 

Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993) 

A protected disclosure may contribute impermissibly to a personnel action against a 

whistleblowing employee even though the official taking the action does not have a retaliatory 

motive. 

JUDICIAL REVIEW 

Claims Predating the Civil Service Reform Act / Frivolous Appeals 

Bergman v. Department of Commerce, 3 F.3d 432 (Fed. Cir. 1993) 

Under the savings clause of the Civil Service Reform Act (CSRA), the U.S. Court of 

Appeals for the Federal Circuit has jurisdiction over claims pending on January 11, 1979, but 

none concerning matters that occurred before that date but were not appealed until after that 

date. 
Scope of Review 

Olivares v. Merit Systems Protection Board, 17 F.3d 386 (Fed. Cir. 1994) 

When the Board dismisses a petition for review of an initial decision as untimely, the only 

issue before the court is the timeliness of the petition for review. The merits of the initial decision 

are not before the court because the petitioner did not timely seek review from the court within 

the 30-day time limit specified in 5 U.S.C. § 7703(b)(1). 

JURISDICTION 

Choice of Forum 

Connor v. United States Postal Service, 15 F.3d 1063 (Fed. Cir. 1994) 

The Board lacks jurisdiction over an appeal asserting discrimination where the petitioner, 

prior to his appeal to the Board, has amended a civil complaint in a U.S. district court to include 

a cause of action based on the same discrimination claims. 

Individual Right of Action 

Weber v. Department of the Army, 9 F.3d 97 (Fed. Cir. 1993) 

An agency's rejection of an employee's suggestion for improving agency operations is not 

a personnel action reviewable by the Board in an IRA appeal. It does not constitute a denial of 

an award, which can serve as the basis for an IRA. 

Ellison v. Merit Systems Protection Board, 7 F.3d 1031 (Fed. Cir. 1993) 

Where an employee's disclosure concerning a personnel action to an agency Inspector 

General alleges waste, fraud, or abuse under the Whistleblower Protection Act, that disclosure 

may form the basis of an IRA appeal even if the employee also challenged the same action in a 

grievance. The Board's jurisdiction in IRA appeals, however, is limited to matters raised before 

the Office of Special Counsel. 

Non-Preference Eligible Postal Service Employees 

Waldau v. Merit Systems Protection Board, 19 F.3d 1395 (Fed. Cir. 1994) 

To qualify as a management official under 39 U.S.C. § 1005(a), a Postal Service 

employee need not have final authority to make decisions. The Board erred in limiting the 

hearing to the jurisdictional ground that the petitioner initially raised. 

Probationary Employee 

Hardy v. Merit Systems Protection Board, 13 F.3d 1571 (Fed. Cir. 1994) 

When an employee takes annual leave, it does not alter his regularly scheduled tour of 

duty for purposes of determining the end of a probationary period. An agency has discretion to 

determine whether temporary service is creditable for completing a probationary period as a 

supervisor or manager. 
Hintz v. Department of the Army, 21 F.3d 407 (Fed. Cir. 1994). 

A person's Federal employment does not commence until the person is appointed to the 

position and authorized to perform a Federal function. The issuance of a personnel action form 

(SF-50) is not required to effect a removal. 

Retirement in Lieu of Removal 

Mays v. Department of Transportation, 27 F.3d 1577 (Fed. Cir. 1994) 

Under 5 U.S.C. § 7701(j), an employee does not lose the right to appeal an agency's 

decision to remove her merely because the employee retired effective the same day that the 

removal would be effective. 

Temporary Employee 

Anderson v. Merit Systems Protection Board, 12 F.3d 1069 (Fed. Cir. 1993) 

Estoppel cannot be used to satisfy the threshold requirements of jurisdiction and 

standing. The Board has no jurisdiction over the termination of a temporary appointment unless 

the appellant meets the definition of an employee under 5 U.S.C. § 7511. 

Transfer 

Brodt v. Merit Systems Protection Board, 11 F.3d 1060 (Fed. Cir. 1993) 

An agency's refusal to transfer an employee is not directly appealable to the MSPB, and 

the agency's alleged improper motivation cannot confer jurisdiction. 

RETIREMENT BENEFITS 

Computation of a Former Spouse Annuity 

Vagg v. Office of Personnel Management, 1 F.3d 1208 (Fed. Cir. 1993). 

Under California law, a former spouse who is awarded a portion of her husband's future 

annuity when he turns 62 is entitled to a share of his disability annuity, which includes all of the 

cost of living increases that the annuitant received between the date he retired and the date he 

turned 62, if his annuity was based on his years of service. 

Equitable Estoppel / Notice of Election Rights 

Belanger v. Office of Personnel Management, 1 F.3d 1223 (Fed. Cir. 1993) 

Equitable estoppel based on alleged Government misconduct will not lie where there is 

no reasonable reliance. The statutory requirement that OPM notify annuitants annually of their 

election rights cannot be violated where a former employee dies within a year of his retirement. 

Firefighters 

Perske v. Office of Personnel Management, 25 F.3d 1014 (Fed. Cir. 1994) 

In determining whether an employee's job qualifies as a firefighter position for the 

purpose of an enhanced retirement annuity, the determinative factor is the actual duties 

performed, not the position description, job title, or job grading criteria. 
Spouse Equity Act 

Sandel v. Office of Personnel Management, 28 F.3d 1184 (Fed. Cir. 1994) 

An employee's former wife cannot qualify for a survivor annuity as the employee's widow 

under 5 U.S.C. § 8341(b)(1) because she is not the employee's surviving spouse. OPM was not 

required to notify an employee's former spouse of the statutory deadline to apply for an annuity 

under the Spouse Equity Act. 

Muwwakkil v. Office of Personnel Management, 18 F.3d 921 (Fed. Cir. 1994) 

OPM has a duty to verify an application for a lump-sum refund of an employee's 

retirement contributions to ensure that there is no former spouse with an interest in the 

employee's retirement benefits. 

Survivor Annuity 

Wassenaar v. Office of Personnel Management, 21 F.3d 1090 (Fed. Cir. 1994) 

A deceased Federal employee's failure to meet the age requirement for an enhanced 

retirement annuity at the time of his death does not affect his surviving spouse's entitlement to 

an enhanced survivor annuity under 5 U.S.C. § 8341(d). 
APPENDIX D - MERIT SYSTEMS STUDIES AND REVIEWS OF OPM SIGNIFICANT 

ACTIONS 

MERIT SYSTEMS STUDIES 

The following are summaries of the Board's merit systems studies published during 

fiscal year 1994: 

Working for America: An Update - This report, published in July 1994, details 

significant findings from a survey of 13,432 Federal employees regarding work-related issues. 

The report notes that employees and supervisors believe the quality of the Federal workforce 

is improving and that the number of employees who would recommend the Government as a 

place to work has increased significantly. However, substantial numbers of employees feel 

they are not being treated fairly on the job. The report makes several recommendations and 

encourages policymakers and managers to consider the survey findings as they seek to 

implement the recommendations of the National Performance Review. 

Entering Professional Positions in the Federal Government - This report, published in 

April 1994, calls attention to the many changes that have occurred over the past 10 years in 

how the Federal Government attracts and selects employees. The report identifies and 

analyzes the six primary means through which individuals first enter professional or 

administrative jobs. Using 1984 and 1992 as comparison years, it highlights the substantial 

decentralization in staffing that has occurred between those two years. It also examines: (1) 

possible quality differences among employees selected through the different staffing 

processes; and (2) the effect of different processes on the percentages of women and 

minority employees entering the professional and administrative occupations in the Federal 

workforce. 

Key recommendations from this report include: (1) OPM should maintain an oversight 

program to ensure that staffing programs are achieving desired end results and are operating 

in accordance with the merit system principles; (2) OPM should assist agencies in developing 

the best and most cost-effective recruitment and selection processes possible; (3) agencies 

should continue efforts to make written examinations less time-consuming and cumbersome; 

(4) the "rule of three" that limits selection in initial hiring to the three top-rated candidates 

available regardless of the size and relative quality of the applicant pool should be abolished; 

and (5) the Outstanding Scholar authority that allows noncompetitive hiring of individuals with 

high grade-point averages should be abolished as the Administrative Careers with America 

(ACWA) examination is converted to case examining. 

Evolving Workforce Demographics: Federal Agency Action and Reaction - This report, 

published in November 1993, examines several of the important predictions of Workforce 

2000 and its Federal Government counterpart, Civil Service 2000, to see which of the 

predicted changes have actually materialized, which have been overtaken by events, and 

what Federal agencies are doing to address them. Predictions studied include the increasing 

age and diversity of the workforce. The study finds that Federal agencies, while 

acknowledging upcoming changes, have not committed significant resources or devised 

major new human resources initiatives to deal with changing demographics. Rather, agencies 

are relying on ongoing, established human resources programs to meet the potential 

challenges arising from demographic changes. 
Among the report's recommendations are that Federal agencies should do more to 

address the motivational and productivity issues related to older workers and should consider 

shifting emphasis on minority intake to career development of minorities and women already 

in the Federal workforce. 

Whistleblowing in the Federal Government: An Update - This report, published in 

October 1993, updates a 1983 Board study and deals with the identification and reporting of 

illegal or wasteful activities in the Federal Government. The new study found a slightly lower 

percentage of employees who said they had observed an illegal or wasteful activity, 

compared to 1983 findings (18 percent in 1992 versus 23 percent in 1983). Employees were 

also much more likely to have reported the illegal or wasteful activity (50 percent reported in 

1992, and only 30 percent reported in 1983). Unfortunately, the study found a higher 

percentage of employees in 1992 who believed they had experienced or had been threatened 

with retaliation for reporting the wasteful or illegal activity than was found in 1983 (37 percent 

versus 24 percent, respectively). 

The report recommends that agencies ensure that employees understand the kinds of 

activities they should be reporting to management, and how to go about reporting problems 

they have identified. The report also recommends that agencies work harder to promote nonthreatening climates in which sharing information about problems in the workplace is valued 

and rewarded through positive encouragement, feedback, and problem resolution. Finally, the 

report recommends that agencies examine their programs for selecting supervisors to ensure 

that they are selecting a management team with whom employees will feel comfortable 

sharing information. 

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

The following is a summary of the Board's OPM oversight report published during fiscal 

year 1994: 

Temporary Federal Employment: In Search of Flexibility and Fairness - This report, 

published in September 1994, examines the actions of the Office of Personnel Management 

in Federal hiring policies for temporary employees and discusses the alternatives for 

temporary employment policy to be considered as part of the projected overhaul of all Federal 

hiring. The report finds that OPM's policy changes restricting the time limits on temporary 

appointments and positions are an excellent interim measure to curb abuses of temporary 

hiring that have been reported. The report goes on to discuss the alternatives for providing 

managers greater flexibility while ensuring that temporary employees are not abused. 

The report recommends that health insurance benefits be extended to all but very 

short-term temporary employees and that other additional benefits for temporary employees 

be considered based on their overall length of Federal service. Further, it recommends that 

managers be allowed to convert temporary employees to permanent status, provided that the 

temporary employees' functions become permanent and that competitive requirements are 

met. 
CUSTOMER SERVICE STANDARDS 

The Merit Systems Protection Board has two core missions: (1) Adjudication of appeals 

brought to it under the provisions of law and regulation, and (2) Oversight of the Federal merit 

systems. These two missions are authorized in the Civil Service Reform Act of 1978. 

We have established these standards to assure our customers that they receive the 

quality of service to which they are entitled and to assure the public as a whole that we are ably 

promoting and protecting the Federal merit systems. 

MISSION I — Adjudication of Appeals 

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

follow. 

2. We will process appeals in a fair, objective manner, according respect and 

courtesy to all parties. 

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

4. We will facilitate the settlement of appeals. 

5. We will issue readable decisions based on consistent interpretation and 

application of law and regulation. 

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

days on petitions for review, except where full and fair adjudication of an appeal requires a 

longer period. 

7. We will make our decisions readily available to our customers. MISSION II — 

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

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

the Federal merit systems and the significant actions of the U.S. Office of Personnel 

Management; perform sound, objective analysis; and where warranted, develop practical 

recommendations for improvement. 

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

research and make these reports available to all interested individuals and parties. 

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

outreach efforts. 

We will conduct surveys of our customers from time to time to see how well we are 

meeting these standards. However, if at any time, you have comments or suggestions 

concerning our service, we invite you to provide feedback to our Chairman, Mr. Ben Erdreich, 

through the Clerk of the Board, at 1120 Vermont Avenue, NW, Washington, DC 20419, 

telephone (202) 653-7200, FAX number (202) 653-7130. Electronic mail may be sent over the 

Internet to mspb@mspb.gov.