Merit Systems Protection Board 

Fiscal Year 2006 

Annual Report 

April 2007 
Foreword 

In accordance with section 1206 of Title 5 United States Code, the Merit Systems Protection Board 

(MSPB or the Board) provides this annual report on MSPB’s significant actions during FY 2006. 

This report includes summaries of the most significant Board and court decisions issued during the 

year, case processing statistics, summaries of MSPB’s merit systems studies, summaries of the 

significant actions of the Office of Personnel Management (OPM), and a summary of MSPB’s 

financial results. In addition, where there have been significant activities since the end of the fiscal 

year, the report includes updated information as a service to the reader. 

Additional information about FY 2006 program performance results and financial audit information 

is included in MSPB’s separate Performance and Accountability Report (PAR). This Annual Report 

and the PAR as well as other information about the MSPB can be found on MSPB’s Web site: 

www.mspb.gov.

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Table of Contents

 Page 

Fiscal Year 2006 in Review ........................................................................................................1

Protecting merit in multiple alternative human capital management systems ..................................................... 1

Board membership and MSPB leadership................................................................................................................. 1

Adjudication.................................................................................................................................................................... 2

Merit systems studies..................................................................................................................................................... 2

Legislative activity.......................................................................................................................................................... 2

Significant actions of the Office of Personnel Management.................................................................................. 3

Board Members and Board Organization.................................................................................5

Board members.............................................................................................................................................................. 5

Board offices and structure .......................................................................................................................................... 8

Organization chart......................................................................................................................................................... 9

Significant Board decisions and Court opinions issued in FY 2006....................................... 11

Significant Board decisions ........................................................................................................................................11

Opinions issued by the United States Supreme Court relevant to Board practice ...........................................17

Significant opinions issued by the United States Court of Appeals for the Federal Circuit............................17

FY 2006 Case Processing Statistics ......................................................................................... 19

Summary of cases decided by MSPB........................................................................................................................19

Regional case processing.............................................................................................................................................20

Headquarters case processing ....................................................................................................................................26

Summaries of Merit Systems Studies ...................................................................................... 31

Designing an Effective Pay for Performance Compensation System.................................................................31

Contracting Officer Representatives: Managing the Government’s Technical Experts to 

 Achieve Positive Contract Outcomes .....................................................................................................31

Reforming Federal Hiring: Beyond Faster and Cheaper......................................................................................32

Navigating the Probationary Period After Van Wersch and McCormick...............................................................32

The Practice of Merit: A Symposium......................................................................................................................33

Accomplishing Our Mission: Results of the Merit Principles Survey 2005 ......................................................34

Issues of Merit Newsletter..............................................................................................................................................35

Significant Actions of the Office of Personnel Management (OPM).....................................37

Policy and leadership...................................................................................................................................................37

Compliance and accountability..................................................................................................................................39

Delivery of human resources products and services..............................................................................................40

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

v
Merit Systems Protection Board 

FY 2006 Annual Report 

Fiscal Year 2006 in Review 

Protecting merit in multiple alternative human capital management systems 

The development of alternative human capital management policies and procedures continued to be 

a significant trend affecting the Federal merit systems in FY 2006. The most recent of these 

alternative systems are the ones in the Department of Homeland Security (DHS) and the 

Department of Defense (DoD). The DHS and DoD laws include flexibilities in hiring, performance 

management, pay, and labor and employee relations. The laws also include provisions to authorize 

DHS and DoD to alter their appeals and labor management procedures. The regulations 

promulgated under the DHS and DoD laws have been the subject of litigation and the DoD 

procedures are currently under review by the U.S. Court of Appeals for the D.C. Circuit. 

Regardless of the outcomes of this judicial review, the increase in the number of agency-specific 

merit systems increases the complexity of MSPB’s adjudication work. In addition, the appeals 

workload could change over time depending on how these new alternative systems are implemented. 

The increase in the number of alternative management systems also impacts MSPB’s merit systems 

studies function as it increases the need for evaluation of these new procedures. The laws 

authorizing the flexibilities granted to DHS, DoD and to other agencies in recent years, provide that 

the Title 5 provisions governing merit system principles and prohibited personnel practices may not 

be waived, modified, or otherwise affected. Therefore, there will be an even greater need for studies 

of these new personnel systems to ensure that they operate in accordance with merit principles and 

are free from prohibited personnel practices. 

MSPB performs its role as chief protector of the Federal merit systems in accordance with the 

determinations made by the Congress and the President. MSPB’s experience in independently 

adjudicating appeals and conducting merit systems studies will continue to provide effective and 

efficient protection for the Federal merit systems and the rights of individuals within those systems. 

In this way, MSPB will continue to assure the public of the Government’s commitment to meritbased management. 

Board membership and MSPB leadership 

The President and Congress took actions in early FY 2006 which provided MSPB with a full 

complement of Board members. On December 17, 2005, the Senate confirmed the President’s 

nomination of Mary M. Rose to serve as a Member of the Board. On January 27, 2006, the President 

designated Member Rose as Vice Chairman of the Board. 

In late FY 2006, the position of Director of the Office of Financial and Administrative Management 

(FAM) was designated as a Senior Executive Service (SES) position. On September 29, 2006, 

Charles Roche was selected for the position and appointed to the SES. On October 15, 2006, 

Chairman McPhie appointed B. Chad Bungard as General Counsel of the Board filling the vacancy 

created by the retirement of Martha B. Schneider. 
Adjudication 

MSPB decided appeals and petitions for review (PFRs) in accordance with the laws and regulations 

governing such appeals. MSPB processed 8,460 cases in FY 2006, slightly more than in FY 2005. 

The regional and field offices issued timely, high quality initial decisions and MSPB headquarters 

offices significantly improved case processing timeliness while maintaining the quality of decisions at 

this level. MSPB provided a full menu of alternative dispute resolution options to its customers. 

MSPB successfully operates settlement programs at the regional and field offices and at 

headquarters, with separate settlement judges made available at the regional and field offices. In 

addition, MSPB successfully operated and expanded its Mediation Appeals Program. The case 

processing statistics presented in this report give detailed information regarding the type, origin and 

disposition of cases filed with MSPB. 

This report also contains brief summaries of the most significant Board decisions as well as court 

opinions published in FY 2006. Significant Board decisions addressed such issues as the Uniformed 

Services Employment and Reemployment Rights Act of 1994 (USERRA), whistleblowing, adverse 

action appeal rights, the Family and Medical Leave Act (FMLA), MSPB procedures, remedies and 

retirement. Supreme Court opinions addressed whether the First Amendment protects a 

government employee from discipline based on speech made pursuant to official duties, and 

whether Title VII anti-retaliation provisions protects an employee only from actions related to 

employment that occur at the workplace. Significant Court of Appeals opinions covered the right of 

Veterans Affairs medical personnel to file individual right of action appeals, retirement benefits, 

non-selection resulting from cancellation of a vacancy announcement as a personnel action, 

disability discrimination and protected disclosures related to whistleblowing. 

 

Merit systems studies 

MSPB completed eight merit systems studies and issued reports on such issues as pay for 

performance, managing contracting officer representatives (CORs) to achieve positive contract 

outcomes, reforming Federal hiring and the impact of Van Wersch and McCormick on the 

probationary period. MSPB also published the proceedings from its Symposium on the practice of 

merit in agencies with management flexibilities beyond the traditional procedures contained in Title 

5 USC. MSPB issued four editions of the Issues of Merit newsletter which included articles on training 

of CORs, improving Federal hiring, survey findings on the occurrence of prohibited personnel 

practices and how merit can be achieved in alternative personnel systems. 

Legislative activity 

The FY 2006 appropriation for the Board was enacted on November 30, 2005 as part of the 

Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, 

and Independent Agencies Appropriations Act of 2006 (Pub. Law 109-115). The amount 

appropriated for the Board was $35,600,000 plus up to $2,605,000 in reimbursements from the Civil 

Service Retirement and Disability Fund. This amount was subject to a 1% rescission, which resulted 

in a $380,000 reduction in the appropriations amount for FY 2006. 

The Board’s current authorization expires on September 30, 2007. As required by statute, Chairman 

McPhie submitted a request for reauthorization along with draft legislation to the House Committee 

on Government Reform and to the Senate Committee on Homeland Security and Governmental 

2
Affairs on May 15, 2006. In addition to the request for reauthorization, the Chairman requested the 

enactment of six legislative proposals. These proposals seek: (1) a statutory order of succession for 

management of the agency; (2) the authority to grant summary judgment; (3) a limited exemption 

from certain requirements of the Sunshine Act; and (4) three technical corrections to the Board’s 

authorizing statute that clarify the Chairman’s authority to make administrative decisions regarding 

the management of the agency. 

The legislative activity for the Board during FY 2006 included conducting briefings for 

congressional staff, providing testimony during congressional hearings and providing statements for 

the hearing record where the Chairman was not required to testify in person. In November 2005, 

Chairman McPhie testified at a hearing before the House Government Reform Subcommittee on 

the Federal Workforce and Agency Organization entitled, Justice Delayed is Justice Denied: A Case for a 

Federal Employees Appeals Court. In April 2006, the Chief of Staff, the General Counsel and the 

Legislative Counsel briefed the majority staff of the House Committee on Homeland Security 

Subcommittee on Management, Integration & Oversight regarding the implications of the Markey 

Amendment on the Board’s enforcement of the Whistleblower Protection Act. In July 2006, 

Chairman McPhie testified at a hearing before the House Government Reform Subcommittee on 

the Federal Workforce and Agency Organization entitled, Establishing a Commission to Recommend 

Improvements for the Federal Employees Appeals Process. 

As part of his efforts to increase outreach to members of Congress and to be of further assistance to 

them in their representational and constituent services duties, the Chairman sent letters of 

introduction to Congressional members who represent districts and states where Board regional and 

field offices are located. Additional outreach activities are planned for 2007, particularly in light of 

the large number of new members who have joined both chambers.

Significant actions of the Office of Personnel Management 

MSPB is responsible for providing an independent, nonpartisan review of the actions of OPM to 

ensure that these actions conform with merit principles and do not result in prohibited personnel 

practices. MSPB reviewed the significant policy and leadership actions of OPM including guidance 

on human capital management and continuity of operations related to pandemic influenza, 

probationary period regulations, the DoD and DHS management systems and SES pay for 

performance. MSPB reviewed OPM’s significant compliance and accountability actions including 

implementation of the President’s Management Agenda, annual survey regulations and the Federal 

Human Capital Survey. MSPB also reviewed OPM’s significant actions related to delivering products 

and services including providing hiring tools, reducing the security clearance backlog and managing 

Federal employee benefits programs. 

3
Board Members and Board Organization 

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, and confirmed by the Senate, and serve overlapping, non-renewable 7-year terms. 

Chairman 

NEIL A. G. McPHIE was confirmed as Chairman of the U.S. Merit Systems Protection Board on 

November 21, 2004. Mr. McPhie had served as Acting Chairman since December 10, 2003, when 

President Bush designated him to be Vice Chairman. He was sworn in as a member of the Board on 

April 23, 2003, following his recess appointment by President Bush. Chairman McPhie’s term 

expires on March 1, 2009. Prior to joining the Board, he was Senior Assistant Attorney General in 

the Office of the Attorney General of Virginia. Among other responsibilities, he defended 

employment discrimination claims brought under Federal law and wrongful discharge claims 

brought under state law. Previously, he was Executive Director of the Virginia Department of 

Employment Dispute Resolution (EDR). In that position, he directed implementation of EDR’s 

statewide grievance, mediation, training and consultation programs. He was an Assistant Attorney 

General in the Office of the Attorney General of Virginia from 1982 to 1988. From 1976 until he 

joined the Attorney General’s Office, he was a Trial and Appellate Attorney in the Office of the 

General Counsel at the U.S. Equal Employment Opportunity Commission. He received his J.D. 

degree from Georgetown University Law Center in 1976. He received a B.A. in Economics from 

Howard University in 1973, graduating magna cum laude. He is a member of Phi Beta Kappa. He is 

admitted to the bars of the District of Columbia, Virginia, New York and Iowa, the United States 

Supreme Court, the United States District Court for the District of Columbia, several of the United 

States circuit courts of appeals, and district courts in Virginia. 

5
Vice Chairman 

MARY M. ROSE was designated by President Bush as Vice Chairman of the U.S. Merit Systems 

Protection Board on January 27, 2006. Mrs. Rose was sworn in as a Board Member on December 

28, 2005, following her confirmation by the Senate on December 17, 2005. Vice Chairman Rose’s 

appointment will expire on March 1, 2011. Prior to joining the Board, Mrs. Rose was appointed by 

the President to serve as Vice Chairman of the Federal Salary Council. She was Chairman of the 

Federal Prevailing Rate Advisory Committee where she advised the Director of the U.S. Office of 

Personnel Management on Federal pay, benefits, and other policy issues. Previously, Mrs. Rose 

served as Deputy Associate Director of the Office of Presidential Personnel at the White House. 

She served four years as the Elected Clerk of the Circuit Court, Anne Arundel, Maryland. Mrs. Rose 

has also served as Assistant Director for Executive Administration, Office of Personnel 

Management; Director of Personnel, White House Personnel Office; and Deputy Undersecretary for 

Management at the Department of Education. Her private sector experience includes positions as a 

Consultant with an Annapolis law firm and as a Visiting Fellow with The Heritage Foundation 

where she recruited, interviewed, and recommended Presidential appointments to the George W. 

Bush transition team. Mary M. Rose received an R.N. degree from the Bon Secours Hospital School 

of Nursing, and she completed the Maryland Registered Nurse Recertification Program in May 2000. 

Mrs. Rose is married to Philip D. Rose, M.D., and has four children. 

6
Member 

BARBARA J. SAPIN was confirmed as a Member of the Merit Systems Protection Board on 

November 21, 2004. Previously, Ms. Sapin served as Vice Chairman during a recess appointment 

(December 2000 – December 2001). Ms. Sapin’s term expired on March 1, 2007. She continues to 

serve as a Member pursuant to 5 U.S.C. 1202(c) of MSPB’s enabling statute, which permits a 

member whose term has expired to continue to serve until a successor has been appointed but no 

longer than one year after the term has expired. Before joining the Board, Ms. Sapin served in a 

number of labor and employment law related positions, including General Counsel and Labor 

Counsel to the American Nurses Association from 1990 to 2001. In addition, Ms. Sapin held several 

positions at the National Labor Relations Board from 1981 to 1990, including attorney for the 

Appellate Court Branch in Washington, D.C., field attorney in the Chicago Regional Office, and 

Senior Counsel to a Board Member. Prior to 1981, Ms. Sapin’s Government service included 

positions with the Occupational Safety and Health Review Commission and the U.S. Environmental 

Protection Agency. Ms. Sapin received her B.A. in Psychology from Boston University and a Juris 

Doctorate from the Columbus School of Law, Catholic University of America. She is admitted to 

the District of Columbia and Maryland Bars. 

7
Board offices and structure 

MSPB is divided into several functional offices organized according to its statutory missions to 

adjudicate appeals and conduct merit systems studies and the functions required to support these 

missions. In addition to its three appointed Board members, MSPB has approximately 225 

employees assigned to headquarters and to its eight regional and field offices located throughout the 

United States. 

The Board Members adjudicate cases brought to MSPB. The Chairman, by statute, is the chief 

executive and administrative officer of MSPB. Office heads report to the Chairman through the 

Chief of Staff. 

The Office of the Administrative Law Judge (ALJ) adjudicates and issues initial or recommended 

decisions on petitions for corrective action and disciplinary action complaints (including Hatch Act 

complaints) brought by the Special Counsel, proposed agency actions against administrative law 

judges, MSPB employee appeals, and other cases assigned by the Board. (The functions of this office 

are currently performed by administrative law judges at the National Labor Relations Board with 

staff support from the MSPB headquarters legal offices under an interagency agreement.) 

The Office of Appeals Counsel (OAC) conducts legal research and prepares proposed decisions 

for the Board in cases where parties petition for review of administrative judge’s initial decisions and 

in most other cases decided by the Board. The office conducts MSPB’s petition for review (PFR) 

settlement program, prepares proposed decisions on interlocutory appeals of rulings made by judges, 

makes recommendations on reopening cases 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 (OCB) receives and processes cases filed at MSPB 

headquarters, rules on certain procedural matters, and issues the Board’s decisions and orders. The 

office serves as MSPB’s public information center, coordinates media relations, publishes public 

information, operates MSPB’s library and on-line information services, and administers the Freedom 

of Information Act and Privacy Act programs. The office also certifies official records to the courts 

and Federal administrative agencies, and manages MSPB’s records and directives systems, legal 

research programs, and the Government in the Sunshine Act program. 

 

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

equal employment opportunity programs. It processes complaints of alleged discrimination and 

furnishes advice and assistance on affirmative action initiatives to MSPB managers and supervisors. 

The Office of Financial and Administrative Management (FAM) administers the budget, 

accounting, travel, time and attendance, human resources, procurement, property management, 

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

management programs and projects, including review of internal controls agency-wide. It also 

administers the agency’s cross-servicing agreements with the U.S. Department of Agriculture 

(USDA) National Finance Center for payroll services, the Department of the Treasury Bureau of the 

Public Debt for accounting services, and the USDA Animal Plant and Health Inspection Services 

for human resources management services. 

8
The Office of the General Counsel (OGC), as legal counsel to the Board, provides advice to the 

Board and MSPB offices on a wide range of legal matters arising in day-to-day operations. The 

office represents MSPB in litigation, prepares proposed decisions for the Board on compliance 

cases, requests to review OPM regulations and other assigned cases, and coordinates MSPB’s 

legislative policy and congressional relations functions. The office also drafts regulations, conducts 

MSPB’s ethics program and plans and directs audits and investigations. 

The Office of Information Resources Management (IRM) develops, implements, and maintains 

MSPB’s automated information systems to help MSPB manage its caseload efficiently and carry out 

its administrative and research responsibilities. 

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

conduct studies of the civil service and other Federal merit systems. Reports of these studies are 

directed to the President and the Congress and are distributed to a national audience. The office 

provides information and advice to Federal agencies on issues that have been the subject of MSPB 

studies. The office also conducts special projects for the Board and has responsibility for preparing 

MSPB’s plans and reports required by the Government Performance and Results Act (GPRA). 

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

which receive and process appeals and related cases, and manages MSPB’s mediation appeals 

program (MAP). Administrative judges (AJs) in the regional and field offices are responsible for 

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

Organization chart 

Merit Systems Protection Board

CHAIRMAN MEMBER

General Counsel

Equal 

Employment

Clerk of the 

Board

Administrative 

Law Judge Regional 

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices 

 Atlanta, Chicago, 

Dallas

Philadelphia,

San Francisco and 

Washington, DC 

Field Offices 

 Denver and

New York

Financial and 

Administrative 

Management

Information 

Resources 

Management

Chief of Staff

Human Resources Management services are provided by 

USDA's Agricultural Plant and Health Inspection Service (APHIS) Business Services.

Payroll services are provided by USDA's

National Finance Center.

 Accounting services are provided by the Department of the Treasury’s 

 Bureau of the Public Debt.

VICE CHAIRMAN

9
Significant Board decisions and Court opinions issued in FY 2006 

MSPB issued a substantial number of noteworthy decisions in fiscal year 2006, several of which are 

summarized here. The report also includes brief summaries of a number of significant opinions 

issued by the United States Supreme Court and the United States Court of Appeals for the Federal 

Circuit. 

Significant Board decisions 

USERRA/Military Leave Cases

The Board issued several notable decisions concerning employees’ claims that their employing 

agencies violated the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA) by improperly charging them military leave on nonworkdays (e.g., weekends and 

holidays) when those days fell within a period of absence for active military duty or military training 

in the military reserves or National Guard. The Board has received a large number of appeals of this 

type following the decision of the U.S. Court of Appeals for the Federal Circuit in Butterbaugh v. 

Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), which held that federal employees had to take 

military leave under 5 U.S.C. § 6323(a) only for those days spent training with the military reserves 

on which they were otherwise required to work at their federal jobs. 

In Garcia v. Department of State, 101 M.S.P.R. 172 (February 27, 2006), the Board held that it has 

jurisdiction under USERRA, as amended by the Veterans Programs Enhancement Act of 1998, to 

adjudicate allegations that an agency improperly charged military leave prior to the enactment of 

USERRA. The Board determined that an agency’s improper charging of military leave, which an 

employee was entitled to receive in connection with absences for purposes of reserve training, was 

prohibited by the Veterans’ Reemployment Rights Act of 1974 (VRRA), prior to USERRA’s 

enactment. The Board noted that the legislative histories of VRRA and USERRA indicate that 

Congress intended for claims under both of these statutes to be subject to the equitable doctrine of 

laches rather than any statutory limitations period. Further, as part of the Veterans Programs 

Enhancement Act of 1998, Congress amended USERRA to authorize the Board to adjudicate 

complaints of USERRA violations without regard to whether the complaint accrued before, on, or 

after the date that USERRA was enacted. Thus, in keeping with the Congressional intent expressed 

in the legislative history, and with the spirit of the 1998 amendment to USERRA, the Board found 

that the only time-barred defense to this type of claim is that of laches, which bars an action when 

an unreasonable delay in bringing the action has prejudiced the party against whom the action is 

taken. 

In Harper v. Department of the Navy, 101 M.S.P.R. 166 (February 27, 2006), the agency argued that 28 

U.S.C. § 1658, the “residual” 4-year statute of limitations on the commencement of civil actions 

arising under an Act of Congress, applied to an appeal under USERRA alleging improper charging 

of military leave. The Board disagreed and found that 28 U.S.C. § 1658 does not apply to a 

USERRA claim against a federal agency under 38 U.S.C. § 4324. The Board found that the Veterans 

Programs Enhancement Act of 1998, which amended USERRA to expressly authorize the Board to 

hear USERRA claims that accrued more than 4 years prior to the amendment, clearly indicated that 

Congress did not intend that the Board subject a USERRA claim to the general 4-year statute of 

limitations at 28 U.S.C. § 1658. 

11
In Dombrowski v. Department of Veterans Affairs, 102 M.S.P.R. 160 (May 23, 2006), the Board set forth a 

specific test for stating a USERRA claim under Butterbaugh. The Board explained that the appellant 

must allege that he was forced to use annual leave, sick leave, or leave without pay (LWOP) as a 

result of the agency’s improper charging of military leave for nonworkdays. Further, the Board 

clarified that USERRA authorizes the Board to grant two forms of relief: (1) an order requiring an 

agency to comply with the portion of USERRA that it has violated; and (2) compensation for lost 

wages or benefits resulting from the USERRA violation. Since the military leave law, 5 U.S.C. 

§ 6323, is not part of USERRA, the Board may not order an agency to comply with section 6323. 

Rather, the appropriate remedy in such a case is to order compensation for any annual leave, sick 

leave, or LWOP that the appellant was forced to use as a result of the agency’s improper charging of 

military leave. 

In Jacobsen v. Department of Justice, 101 M.S.P.R. 134 (February 22, 2006), the Board clarified the 

appropriate standard for reviewing an appellant’s request for an award of attorney fees under 

USERRA. The Board found that the administrative judge erroneously denied the appellant’s request 

for attorney fees based on the appellant’s failure to satisfy the “prevailing party” and the “interest of 

justice” criteria set forth in 5 U.S.C. § 7701(g)(1), the attorney fee statute generally applicable in 

Board appeals. The Board held that these criteria cannot be read into USERRA’s specific attorney 

fee provision, 38 U.S.C. § 4324(c)(4), which states that the Board may, in its discretion, award 

attorney fees, expert witness fees, and other litigation expenses when an appellant obtains a remedial 

order from the Board for a USERRA violation. On remand, the administrative judge, exercising her 

discretion under 38 U.S.C. § 4324(c)(4), determined that an award of fees was not appropriate under 

the circumstances because the appellant achieved only a relatively limited degree of success in 

relation to the relief originally sought in his appeal. In Jacobsen v. Department of Justice, 103 M.S.P.R. 

439 (September 22, 2006), the Board affirmed the administrative judge’s decision not to award fees 

given the appellant’s limited success. The Board noted that USERRA’s attorney fee provision does 

not set forth any specific factors that the Board must consider in exercising its discretion to award or 

not to award attorney fees. The Board explained that the factors to be considered will necessarily 

depend on the facts and circumstances of each individual case. 

Whistleblower Cases

In Fishbein v. Department of Health & Human Services, 102 M.S.P.R. 4 (April 21, 2006), the Board held 

that a special consultant employed with the National Institutes of Health could bring an individual 

right of action (IRA) appeal alleging that he was terminated because of his protected whistleblowing 

disclosures, even though he was “appointed without regard to the civil-service laws” under 42 U.S.C. 

§ 209(f). The Board found that nothing in section 409(f) expressly exempts appointees under that 

section from coverage under the Whistleblower Protection Act. Consistent with the Board’s practice 

of liberally construing remedial legislation such as the Whistleblower Protection Act to embrace 

fairly all cases within its scope, the Board concluded that section 409(f) does not implicitly preclude 

a section 409(f) appointee, such as the appellant, from bringing an IRA appeal based on his 

termination from employment if he otherwise meets the statutory requirements for doing so. 

In Wilcox v. International Boundary & Water Commission, 103 M.S.P.R. 73 (August 10, 2006), the Board 

addressed the issue of whether an attorney employed as Legal Advisor/General Counsel by the 

United States section of the International Boundary and Water Commission (IBWC) could bring an 

IRA appeal against the IBWC alleging retaliation for protected whistleblowing disclosures he made 

to the Department of State. The Board found that, although the IBWC is deemed an international 

12
organization, that designation does not extend to the United States section as to matters within its 

exclusive control, supervision, or jurisdiction. The Board concluded that the IBWC is an “agency” 

for purposes of the Whistleblower Protection Act, and that the appellant met the statutory 

definitions of an “employee” in a “covered position” who could bring an IRA appeal. Thus, the 

Board remanded the matter to the regional office for further consideration of the appellant’s claims 

of whistleblower reprisal. 

In Ang v. Department of State and Department of Homeland Security, 103 M.S.P.R. 324 (September 11, 

2006), the Board determined that a foreign national employee who served in the Foreign Service as a 

Customs Investigator for the United States Customs Service in Manila, Philippines, was appointed in 

the “civil service” and was covered by 5 U.S.C. § 2302, which prohibits, among other things, reprisal 

for protected whistleblowing activity. The Board thoroughly analyzed the record evidence regarding 

the nature of the appellant’s appointment and found that the appellant was appointed in the “civil 

service” as that term is defined for purposes of Title 5 of the United States Code. The Board found 

that the appellant satisfied the statutory definitions of an “employee” in a “covered position” and 

thus remanded his whistleblower reprisal claim to the regional office for further adjudication. 

In Bloom v. Department of the Army, 101 M.S.P.R. 79 (February 9, 2006), the Board made clear that an 

administrative judge should not ordinarily order a party to submit a copy of the decision of the 

Office of Special Counsel (OSC) discussing the allegations raised in the appellant’s complaint to 

OSC. The Board emphasized that an IRA appeal is a de novo action and OSC’s characterizations of 

the appellant’s allegations are not binding on the Board. By statute, and in order to ensure that a 

whistleblower is not prejudiced in any way by OSC’s decision not to pursue a case, OSC’s decision 

to terminate its investigation may not be considered in an IRA appeal. Thus, the Board stated that 

an administrative judge should not ordinarily order a party to submit a copy of OSC’s decision letter 

discussing the appellant’s allegations, and, if such an order is issued, the administrative judge must 

explain, on the record, why the letter is necessary and explicitly advise the appellant that the letter is 

inadmissible without the appellant’s consent. 

In Chambers v. Department of the Interior, 103 M.S.P.R. 375 (2006), the appellant claimed that her 

removal from the position of Park Police Chief was taken in retaliation for (among other things) her 

statements to a newspaper reporter of alleged danger to the public resulting from agency budget and 

deployment decisions made by executive and legislative officials; she also claimed that her removal 

violated her First Amendment right to free speech. The Board (with Member Sapin dissenting) 

upheld the removal, finding that the appellant’s statements were not protected whistleblowing 

because they were expressions of personal disagreement with legitimate judgments that policymakers 

made within their spheres of authority; although reasonable minds might differ over the policy 

decisions at issue, Congress did not intend to extend whistleblower protections to statements such 

as the appellant’s. The Board also found that the First Amendment did not shield the appellant from 

discipline because she made her statements pursuant to her official duties and not as a citizen, and 

because her statements did not come within the First Amendment protections afforded to heads of 

police departments. 

Adverse Action Appeal Rights

The Board issued several significant decisions concerning whether certain individuals met the 

definition of an “employee” under 5 U.S.C. § 7511(a)(1) and thus could raise adverse action appeals 

with the Board. In Gadsden v. Department of State, 102 M.S.P.R. 79 (May 12, 2006), the Board 

13
addressed whether an individual serving under a competitive service appointment whose 

appointment has lasted a little more than one year, but whose probationary period was extended 

because of a 60-day period in LWOP status, can be considered to have “completed 1 year of current 

continuous service,” thereby rendering him an “employee” with Board appeal rights under 5 U.S.C. 

§ 7511(a)(1)(A)(ii). It is noted that, in McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. 

Cir. 2002), pet. for reh’g en banc denied, 329 F.3d 1354 (Fed. Cir. 2003), which held that, if an appellant 

meets the conditions of either subsection (i) or (ii) of 5 U.S.C. § 7511(a)(1)(A), she is an “employee” 

with Board appeal rights. The Board found that the appellant’s period in LWOP status counted fully 

toward satisfying the “current continuous service” requirement, even though it did not count fully 

towards completing his probationary period, since nonpay status while remaining on the rolls does 

not constitute a “break in service.” Thus, the appellant met the “1 year of current continuous 

service” requirement and was an “employee” with Board appeal rights under 5 U.S.C. 

§ 7511(a)(1)(A)(ii). The Board reversed the appellant’s removal because the agency’s procedures for 

effecting his removal did not comport with a tenured employee’s constitutional right to minimum 

due process of law. 

In Greene v. Defense Intelligence Agency, 100 M.S.P.R. 447 (November 2, 2005), the Board held that 

5 U.S.C. § 7511(a)(1)(B) provides appeal rights to a preference-eligible employee in the excepted 

service who has completed one year of current continuous service in the same or similar positions, 

regardless of whether the entire year of service was performed in the same agency from which the 

employee was separated. The Board remanded for a determination of whether the appellant’s service 

was “in the same or similar positions.” 

In Thompson v. Department of the Treasury, 100 M.S.P.R. 545 (December 2, 2005), the Board considered 

whether the appellant, who had completed 18 years of service with the Department of Agriculture 

when she accepted a career appointment as a Revenue Officer for the Internal Revenue Service 

(IRS), relinquished her Board appeal rights by signing a “Notification of Probationary Period 

Document” on her first day of employment with the IRS. The document stated that the appellant 

understood that she was serving a probationary period, she relinquished her appeal rights during the 

probationary period, and she did not waive any appeal rights to which she was entitled by signing the 

document. The IRS subsequently removed the appellant during her probationary period for reasons 

arising post-appointment. The Board found that the appellant had no break in service between her 

employment with the Department of Agriculture and the IRS, and thus she met the definition of an 

“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) based on her more than one year of current 

continuous service under other than a temporary appointment limited to one year or less when the 

IRS terminated her. The Board further found that the waiver provision in the Notification of 

Probationary Period Document was unenforceable against her because she received no 

consideration for the waiver of her Board appeal rights. The appellant already occupied her position 

with the IRS when she signed the document and there was no evidence that she knowingly or 

intentionally waived her appeal rights before starting her position with the IRS. 

Family and Medical Leave Act 

In a decision sustaining the removal for absence without leave of a Licensed Practical Nurse who 

had a history of discipline related to leave and attendance, Dias v. Department of Veterans Affairs, 102 

M.S.P.R. 53 (May 11, 2006), the Board addressed whether, in a case such as this, the Family and 

Medical Leave Act of 1993 (FMLA) supersedes the Board’s doctrine permitting evidence of 

incapacitation for duty that was never submitted to the agency to be submitted for the first time in a 

14
Board appeal. The Board determined that the FMLA contains its own mechanism for resolving 

disputes over the adequacy of an employee’s medical evidence and that an agency is entitled by 

statute to require an employee who requests FMLA leave to submit documentation in support of the 

request “in a timely manner.” The Board found no basis for permitting an employee to bypass this 

statutory mechanism by ignoring the agency’s request for medical evidence and then attempting to 

present evidence to support the leave request for the first time in a Board appeal. 

Board Procedures

In Redd v. U.S. Postal Service, 101 M.S.P.R. 182 (February 28, 2006), the Board held that an appellant 

does not have an unconditional right to an evidentiary hearing on a discrimination claim, overruling 

Currier v. U.S. Postal Service, 79 M.S.P.R. 177 (1998). The Board reasoned that an evidentiary hearing 

would serve no purpose where an appellant does not have relevant, admissible evidence on a 

disputed fact to present at a hearing. The Board noted that, in similar circumstances, an 

administrative judge at the Equal Employment Opportunity Commission is authorized to render a 

decision without an evidentiary hearing when the “material facts” are not “in genuine dispute” and 

that a discrimination claim in a federal court may be disposed of by summary judgment. The Board 

found no evidence that Congress intended that the Board must hold an evidentiary hearing when the 

administrative judge could not reasonably find that the agency committed discrimination. Thus, the 

Board held that, when the appellant’s factual allegations in support of a discrimination claim, taken 

as true, could not support an inference that the agency’s action was a pretext for discrimination, the 

administrative judge is not required to permit the appellant to attempt to prove his allegations at an 

evidentiary hearing. 

In Special Counsel v. Department of Homeland Security and Michael Knowles, 101 M.S.P.R. 505 (April 19, 

2006), the Board determined that an employee who allegedly benefited from an agency’s prohibited 

personnel practices was properly allowed to intervene in a corrective action brought by the Special 

Counsel against the agency for committing prohibited personnel practices. The Board explained 

that, under its applicable regulations, permission to intervene will be granted where the requester will 

be affected directly by the outcome of the proceeding and intervention is otherwise appropriate 

under law. The Board found that the circumstances in this case weighed in favor of permitting 

intervention, as the employee’s motion to intervene was timely, he would be adversely affected by 

remedies sought by the Special Counsel should they be granted, and participation of all the affected 

parties now would avoid separate relitigation of the same issues with the potential for inconsistent 

obligations for the agency and the intervenor. 

In Carey v. Department of the Interior, 103 M.S.P.R. 534 (2006), the Board (with Member Sapin 

dissenting) dismissed appeals filed by two employees approximately 10 years after a reduction in 

force (RIF) that adversely affected them. The appellants argued that the 30-day filing deadline 

should be extended because they were included in a class complaint of discrimination challenging 

the RIF that took nearly 10 years to resolve at the agency level. The Board disagreed, finding no 

indication that the appellants actively participated in the class complaint process or were even aware 

of it for the first 8 years after the RIF, and no indication that the appellants delayed filing their 

Board appeals because of the pending class complaint. According to the Board, a timely-filed class 

complaint of discrimination operates to extend the deadline for filing a Board appeal only for an 

individual who was a member of the class and who deliberately delayed filing a Board appeal based 

on a reasonable belief that his or her rights were being pursued in the class complaint process. 

15
Remedies

In Ivery v. Department of Transportation, 102 M.S.P.R. 356 (June 22, 2006), the Board addressed whether 

the Federal Aviation Administration (FAA) is subject to the Back Pay Act and its implementing 

regulations. The Board had previously reversed the appellant’s removal and ordered the agency to 

retroactively restore the appellant to his Airway Transportation Systems Specialist position with back 

pay and other benefits under the Back Pay Act. The appellant subsequently filed a petition for 

enforcement claiming that the agency had not complied with the Board’s decision in several 

respects. The agency argued, among other things, that neither the Back Pay Act nor the back pay 

provisions of the FAA’s personnel management system grant the Board the authority to award back 

pay in these circumstances. Upon review of the applicable statutes and regulations, the Board agreed 

with the agency. The Board found that the FAA is authorized to develop its own personnel 

management system under the Department of Transportation Appropriations Act of 1996, Pub. L. 

104-50, § 347, 109 Stat. 436, 460 (1995), as amended by Pub. L. 104-22, § 1, 110 Stat. 876, 876 

(1996), which provides, in pertinent part, that the provisions of Title 5 of the United States Code, 

with certain listed exceptions, do not apply to the FAA personnel management system. The Back 

Pay Act, 5 U.S.C. § 5596, is not among the listed exceptions. Further, although the FAA has the 

discretion to adopt, and has adopted, the substance of additional sections of Title 5 for use in its 

personnel management system, the Board found that the FAA had not adopted the Back Pay Act. 

The Board also reviewed the back pay regulations for the FAA personnel management system, but 

found that the back pay provision does not apply to Board appeals. Thus, the Board vacated that 

portion of its final decision that ordered restoration of pay and benefits under the Back Pay Act. 

Retirement

In sustaining the decision of the Office of Personnel Management (OPM) to deny the appellant’s 

application for disability retirement benefits in Stevenson v. Office of Personnel Management, 103 M.S.P.R. 

481 (September 26, 2006), the Board (with Member Sapin dissenting) found that the fact that the 

appellant did not apply for disability retirement until after he had been removed for alleged 

misconduct was a relevant factor that detracted from the force of his application, notwithstanding 

the fact that, pursuant to a settlement agreement between the appellant and his agency, his removal 

for misconduct had been canceled and replaced with a removal for medical inability to perform his 

job. The Board found that both OPM and the Board, in carrying out its statutory responsibility of 

reviewing an OPM final decision, may disregard a personnel action taken pursuant to a settlement 

agreement to which OPM was not a party, where the personnel action was an evasive device 

designed to allow the appellant to qualify for retirement benefits for which he would otherwise have 

been ineligible. 

In Kimble v. Office of Personnel Management, 103 M.S.P.R. 175 (2006), the appellant argued that the 

Office of Personnel Management (OPM) erred in giving effect to a divorce decree that awarded a 

portion of his retirement benefits to his ex-wife because the decree used terminology under the 

Employee Retirement Income Security Act (ERISA) and did not conform to OPM’s rules governing 

such orders. The appellant alleged that an OPM paralegal had told him that OPM no longer 

enforced its rule. The Board held, without making any finding on what the appellant may have been 

told, that the appellant was entitled to a reviewable decision either applying OPM’s rule or 

explaining why OPM would not apply its rule. The Board noted that there are significant differences 

between ERISA and the laws governing civil service retirement, and that OPM’s rule thus served the 

16
important purpose of ensuring that the divorce court understood those differences. The Board 

remanded the matter to OPM for a new decision. 

Opinions issued by the United States Supreme Court relevant to Board practice 

The Supreme Court issued two opinions that set law in situations that the Board regularly addresses. 

Though these opinions did not review a Board decision, or concern a Federal employee, summaries 

of the opinions are presented here as a service to the reader. 

Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). The First Amendment does not protect a government 

employee from discipline based on speech made pursuant to the employee’s official duties. 

Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006). Title VII's anti-retaliation 

provision does not confine the actions and harms it forbids to those that are related to employment 

or occur at the workplace. Rather, the provision covers those employer actions that would have 

been materially adverse to a reasonable employee or applicant. The employer's actions must be 

harmful to the point that they could well dissuade a reasonable worker from making or supporting a 

charge of discrimination. 

Significant opinions issued by the United States Court of Appeals for the Federal Circuit 

Whistleblower Protection Act 

Harding v. Department of Veterans Affairs, 448 F.3d 1373 (Fed. Cir. 2006). Congress expressly granted 

the Department of Veterans Affairs (DVA) medical personnel appointed under chapter 73 or 74 of 

Title 38 the right to file individual right of action (IRA) appeals, even if the actions being challenged 

are subject to the DVA’s internal appeals process. 

Fields v. Department of Justice, 452 F.3d 1297 (Fed. Cir. 2006). When an employee voluntarily performs 

follow-up work in further response to an explicitly assigned task, that follow-up work is considered 

“normal duties through normal channels” and disclosures related to that follow-up work are not 

protected under the Whistleblower Protection Act. 

Ruggieri v. Merit Systems Protection Board, 454 F.3d 1323 (Fed. Cir. 2006). A nonselection for a position 

may be appealed to the Board in an individual right of action appeal under the Whistleblower 

Protection Act as a “fail[ure] to take . . . a personnel action,” even if the nonselection occurred due 

to the cancellation of a vacancy announcement and the agency hired no one for the position at that 

time. 

Greenspan v. Department of Veterans Affairs, 464 F.3d 1297 (Fed. Cir. 2006). The Whistleblower 

Protection Act protects “any” disclosure that an employee reasonably believes evidences misconduct 

or mismanagement, even if the disclosure is stated in a blunt manner. 

Adverse Action Appeals 

Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (en banc). Employees 

appealing constructive adverse actions to the Board must prove jurisdiction by a preponderance of 

the evidence. However, once a claimant makes non-frivolous claims of Board jurisdiction, the 

17
claimant has a right to a jurisdictional hearing. At the hearing, the claimant must prove jurisdiction 

by a preponderance of the evidence. 

Gose v. United States Postal Service, 451 F.3d 831 (Fed. Cir. 2006). Where a letter of removal is silent 

about the agency’s interpretation of its regulation, the existence and application of such an 

interpretation cannot be established principally by the after-the-fact testimony of agency officials 

regarding what they had apparently thought but failed to articulate at the relevant time. 

Smith v. Department of the Army, 458 F.3d 1359 (Fed. Cir. 2006). An employee who seeks relief from 

disability discrimination may be entitled to back pay for a period beyond his removal for physical 

inability to perform the duties of his position even when he has not appealed the removal. 

Retirement 

Eldredge v. Department of the Interior, 451 F.3d 1337 (Fed. Cir. 2006). An employee was entitled to 

enhanced retirement benefits for his service in two secondary firefighter positions because his 

breaks in service from those positions were the result of “involuntary separations;” whether a 

separation is involuntary turns on the reason for the termination, not whether the employee knew of 

the possibility of termination at the time he took the job. The court did not defer to relevant 

provisions of an OPM advisory opinion and its FERS Handbook because those sources of guidance 

were not issued under formal notice-and-comment rulemaking and were not otherwise persuasive in 

light of the governing statutes. 

Hernandez v. Office of Personnel Management, 450 F.3d 1332 (Fed. Cir. 2006). OPM’s annual notice was 

insufficient to inform annuitant that, after divorce, a written election of survivor benefits was 

required to grant such benefits to his former spouse. Nevertheless, an inadequate notice only entitles 

a former spouse to benefits if there is sufficient evidence that the annuitant intended the former 

spouse to receive such benefits. 

Snyder v. Office of Personnel Management, 463 F.3d 1338 (Fed. Cir. 2006). If the operative terms in a 

divorce court order can “fairly be read as awarding” survivor annuity benefits to a former spouse, 

then the Board must examine any evidence introduced concerning the marriage parties’ intent and 

the circumstances surrounding the execution of the document to interpret the pertinent clause. 

Miscellaneous 

Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005). Attorneys practicing before 

the Board are not required to be licensed in the state in which the legal services are rendered; 

therefore, such a requirement may not be imposed to deny an attorney fees award. 

Roberto v. Department of the Navy, 440 F.3d 1341 (Fed. Cir. 2006) and Sturdy v. Department of the Army, 

440 F.3d 1328 (Fed. Cir. 2006). Reemployment rights are defined by either a reemployment priority 

list (RPL) or an OPM-approved priority placement program (PPP). An agency’s failure to correctly 

inform an eligible employee of his or her RPL rights in a timely fashion constitutes a violation of the 

employee’s reemployment priority rights that is appealable to the Board. 

18
FY 2006 Case Processing Statistics 

Summary of cases decided by MSPB 

Table 1: FY 2006 Summary of Cases Decided by MSPB 

Cases Decided in MSPB Regional/Field Offices (RO/FO):

 Initial Appeals 6,558 

 Addendum Cases1 489 

 Stay Requests2 63 

TOTAL Cases Decided in Regional/Field Offices 7,110 

TOTAL Cases Decided by Administrative Law Judges (ALJs) – Original Jurisdiction3 11

Cases Decided by the Board at Headquarters:

 Appellate Jurisdiction: 

 Petitions for Review (PFRs) – Appeals 1,162 

 Petitions for Review (PFRs) – Addendum Cases 98 

 Reviews of Stay Request Rulings 0 

 Requests for Stay of Board Order 2 

 Reopenings4 4 

 Court Remands 8 

 Compliance Referrals 25 

 EEOC Non-concurrence Cases 0 

 Arbitration Cases 7 

 Subtotal – Appellate Jurisdiction 1,306 

 Original Jurisdiction5 32 

 Interlocutory Appeals 1 

TOTAL Cases Decided by the Board at Headquarters 1,339 

TOTAL Cases Decided by MSPB (Board, ALJs, RO/FOs) 8,460 

Footnotes to Table 

1 Includes 105 requests for attorney fees, 6 requests for compensatory damages (discrimination cases only), 210 

petitions for enforcement, 140 Board remand cases, and 28 court remand cases. 

2 Includes 42 stay requests in whistleblower cases and 21 in non-whistleblower cases. 

3 Initial Decisions issued by ALJ. Case type breakdown: 1 OSC corrective action, 9 Hatch Act cases and 1 action 

against an ALJ. 

4 4 cases were reopened by the Board on its own motion. 

5 Final Board decisions. Case type breakdown: 11 requests for regulation review, 2 OSC initial stay requests, 12 

PFRs in an action against an ALJ, and 7 Hatch Act cases. 

19
Regional case processing 

Table 2: Disposition of Initial Appeals Decided in the Regional and Field Offices by Type of Case 

Type of Case Decided Dismissed1 Not 

Dismissed1 Settled2 Adjudicated2

% % % % 

Adverse Action by Agency 2669 1277 47.9 1392 52.2 888 63.8 504 36.2 

Termination of Probationers 316 284 89.9 32 10.1 29 90.6 3 9.4 

Reduction in Force 134 88 65.7 46 34.3 22 47.8 24 52.2 

Performance 131 35 26.7 96 73.3 59 61.5 37 38.5 

Acceptable Level of Competence 

(WIGI) 23 16 69.6 7 30.4 6 85.7 1 14.3 

Suitability 88 27 30.7 61 69.3 40 65.6 21 34.4 

CSRS Retirement: Legal 447 206 46.1 241 53.9 7 2.9 234 97.1 

CSRS Retirement: Disability 120 77 64.2 43 35.8 3 7.0 40 93.0 

CSRS Retirement: Overpayment 114 43 37.7 71 62.3 54 76.1 17 23.9 

FERS Retirement 638 313 49.1 325 50.9 97 29.9 228 70.2 

FERCCA 18 11 61.1 7 38.9 0 0.0 7 100.0 

Individual Right of Action 208 148 71.2 60 28.9 29 48.3 31 51.7 

Other 1652 1036 62.7 616 37.3 544 88.3 72 11.7 

Total 6558 3561 54.3 2997 45.7 1778 59.3 1219 40.7 

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

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

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

Other Appeals (1652)

25%

Adverse Action (2669)

41%

Performance (131) 

2%

CSRS Retirement: Legal (447)

7%

Suitability (88)

1%

Reduction in Force (134)

2%

Individual Right of Action (208)

3%

CSRS Retirement: Disability 

(120)

2%

FERCCA (18)

FERS Retirement (638) 0%

10%

CSRS Retirement: 

Overpayment (114)

2%

Acceptable Level of 

Competence (23)

0%

Termination of Probationers 

(316)

5%

Total Number of Appeals: 6,558 

(Percentages do not total 100 because of rounding) 

20
Figure 2: Disposition of Initial Appeals that were Not Dismissed 

Mitigated (18)

1% Other (6)

0%

Settled (1778)

59%

Reversed (185)

6%

Affirmed (1010)

34%

Total Number of Appeals that were Not Dismissed: 2,997 

Mitigated (18)

1%

Reversed (185)

15%

Affirmed (1010)

83%

Other (6)

0%

Figure 3: Disposition of Initial Appeals that were Decided on the Merits 

(i.e., Not Dismissed or Settled)

Based on 1,219 appeals adjudicated on the merits 

(Percentages do not total 100 because of rounding) 

21
Table 3: Disposition of Initial Appeals by Agency 

Decided Dismissed1

Not 

Dismissed1 Settled2 Adjudicated2

% % % % 

Office of Personnel 

Management* 1301 619 47.6 682 52.4 179 26.2 503 73.8 

US Postal Service 1001 618 61.7 383 38.3 277 72.3 106 27.7 

Army 753 356 47.3 397 52.7 330 83.1 67 16.9 

Veterans Affairs 486 289 59.5 197 40.5 126 64.0 71 36.0 

Air Force 394 199 50.5 195 49.5 147 75.4 48 24.6 

Homeland Security 368 217 59.0 151 41.0 88 58.3 63 41.7 

Navy 344 183 53.2 161 46.8 106 65.8 55 34.2 

Defense 299 178 59.5 121 40.5 73 60.3 48 39.7 

Justice 294 177 60.2 117 39.8 75 64.1 42 35.9 

Treasury 261 124 47.5 137 52.5 98 71.5 39 28.5 

Agriculture 181 102 56.4 79 43.6 59 74.7 20 25.3 

Interior 177 99 55.9 78 44.1 33 42.3 45 57.7 

Transportation 161 103 64.0 58 36.0 37 63.8 21 36.2 

Health & Human Services 84 52 61.9 32 38.1 25 78.1 7 21.9 

Social Security Administration 84 48 57.1 36 42.9 21 58.3 15 41.7 

Commerce 50 24 48.0 26 52.0 17 65.4 9 34.6 

Labor 48 26 54.2 22 45.8 11 50.0 11 50.0 

General Services Administration 48 25 52.1 23 47.9 16 69.6 7 30.4 

Housing & Urban Development 25 10 40.0 15 60.0 9 60.0 6 40.0 

Education 19 17 89.5 2 10.5 1 50.0 1 50.0 

Energy 18 8 44.4 10 55.6 6 60.0 4 40.0 

Smithsonian Institution 18 7 38.9 11 61.1 9 81.8 2 18.2 

Environmental Protection 

Agency 16 5 31.3 11 68.8 7 63.6 4 36.4 

State 14 9 64.3 5 35.7 4 80.0 1 20.0 

Federal Deposit Insurance 

Corporation 13 7 53.8 6 46.2 0 0.0 6 100.0 

National Aeronautics and Space 

Administration 10 7 70.0 3 30.0 3 100.0 0 0.0 

Tennessee Valley Authority 9 7 77.8 2 22.2 0 0.0 2 100.0 

Equal Employment Opportunity 

Commission 8 5 62.5 3 37.5 2 66.7 1 33.3 

Government Printing Office 6 3 50.0 3 50.0 2 66.7 1 33.3 

Agency for International 

Development 5 4 80.0 1 20.0 0 0.0 1 100.0 

Armed Forces Retirement Home 5 2 40.0 3 60.0 3 100.0 0 0.0 

Administrative Office of US 

Courts 4 4 100.0 0 0.0 0 0.0 0 0.0 

Broadcasting Board of 

Governors 4 3 75.0 1 25.0 1 100.0 0 0.0 

Court Services & Offender 

Supervision 4 0 0.0 4 100.0 2 50.0 2 50.0 

Government of the District of 

Columbia 4 3 75.0 1 25.0 0 0.0 1 100.0 

22
Table 3: Disposition of Initial Appeals by Agency (continued)

Decided Dismissed1 Not 

Dismissed1 Settled2 Adjudicated2

% % % % 

National Archives and Records 

Administration 4 2 50.0 2 50.0 1 50.0 1 50.0 

Nuclear Regulatory Commission 4 2 50.0 2 50.0 2 100.0 0 0.0 

Small Business Administration 4 3 75.0 1 25.0 0 0.0 1 100.0 

Corporation for National & 

Community Service 

3 2 66.7 1 33.3 0 0.0 1 100.0 

National Mediation Board 3 0 0.0 3 100.0 3 100.0 0 0.0% 

Securities & Exchange 

Commission 

3 1 33.3 2 66.7 1 50.0 1 50.0 

Commodity Futures Trading 

Commission 

2 1 50.0 1 50.0 0 0.0 1 100.0 

Federal Communications 

Commission 

2 1 50.0 1 50.0 1 100.0 0 0.0 

National Credit Union 

Administration 

2 0 0.0 2 100.0 0 0.0 2 100.0 

Office of Special Counsel 2 1 50.0 1 50.0 1 100.0 0 0.0 

Peace Corps 2 2 100.0 0 0.0 0 0.0 0 0.0 

American Battle Monuments 

Commission 

1 0 0.0 1 100.0 0 0.0 1 100.0 

Consumer Product Safety 

Commission 

1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Housing Finance Board 1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Labor Relations 

Authority 

1 0 0.0 1 100.0 0 0.0 1 100.0 

Federal Trade Commission 1 0 0.0 1 100.0 0 0.0 1 100.0 

Government Accountability 

Office 

1 0 0.0 1 100.0 1 100.0 0 0.0 

International Boundary & Water 

Commission 

1 1 100.0 0 0.0 0 0.0 0 0.0 

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

Other 1 1 100.0 0 0.0 0 0.0 0 0.0 

Selective Service System 1 0 00.0 1 100.0 1 100.0 0 0.0 

US Tax Court 1 1 100.0 0 0.0 0 0.0 0 0.0 

TOTAL 6558 3561 54.3 2997 45.7 1778 59.3 1219 40.7 

* Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator 

of the Civil Service Retirement System and the Federal Employees Retirement System. 

1 Percentages in columns Dismissed and Not Dismissed are of Decided. 2 Percentages in columns Settled and Adjudicated are of Not Dismissed. 

23
Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency 

Adjudicated Affirmed Reversed Mitigated 

Modified Other 

% % % % 

Office of Personnel 

Management 503 381 75.7 118 23.5 1 0.2 3 0.6 

US Postal Service 106 92 86.8 8 7.5 5 4.7 1 0.9 

Army 67 54 80.6 9 13.4 4 6.0 0 0.0 

Veterans Affairs 71 68 95.8 3 4.2 0 0.0 0 0.0 

Air Force 48 38 79.2 10 20.8 0 0.0 0 0.0 

Homeland Security 63 56 88.9 4 6.3 1 1.6 2 3.2 

Navy 55 48 87.3 5 9.1 2 3.6 0 0.0 

Defense 48 45 93.8 2 4.2 1 2.1 0 0.0 

Justice 42 33 78.6 8 19.0 1 2.4 0 0.0 

Treasury 39 35 89.7 3 7.7 1 2.6 0 0.0 

Agriculture 20 17 85.0 3 15.0 0 0.0 0 0.0 

Interior 45 42 93.3 3 6.7 0 0.0 0 0.0 

Transportation 21 15 71.4 5 23.8 1 4.8 0 0.0 

Health & Human Services 7 7 100.0 0 0.0 0 0.0 0 0.0 

Social Security Adm. 15 15 100.0 0 0.0 0 0.0 0 0.0 

Commerce 9 9 100.0 0 0.0 0 0.0 0 0.0 

Labor 11 11 100.0 0 0.0 0 0.0 0 0.0 

General Services Administration 7 7 100.0 0 0.0 0 0.0 0 0.0 

Housing & Urban Development 6 6 100.0 0 0.0 0 0.0 0 0.0 

Education 1 1 100.0 0 0.0 0 0.0 0 0.0 

Energy 4 4 100.0 0 0.0 0 0.0 0 0.0 

Smithsonian Institution 2 1 50.0 1 50.0 0 0.0 0 0.0 

Environment Protection Agency 4 4 100.0 0 0.0 0 0.0 0 0.0 

State 1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Deposit Insurance 

Corporation 6 4 66.7 1 16.7 1 16.7 0 0.0 

Tennessee Valley Authority 2 2 100.0 0 0.0 0 0.0 0 0.0 

Equal Employment Opportunity 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

Government Printing Office 1 1 100.0 0 0.0 0 0.0 0 0.0 

Agency for International 

Development 1 1 100.0 0 0.0 0 0.0 0 0.0 

Court Services & Offender 

Supervision 2 2 100.0 0 0.0 0 0.0 0 0.0 

Government of the District of 

Columbia 1 1 100.0 0 0.0 0 0.0 0 0.0 

24
Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency (Cont.) 

Adjudicated Affirmed Reversed Mitigated 

Modified Other 

% % % % 

National Archives and Records 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0 

Small Business Administration 1 1 100.0 0 0.0 0 0.0 0 0.0 

Corporation for National & 

Community Service 1 0 0.0 1 100.0 0 0.0 0 0.0 

Security & Exchange 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

Commodity Futures Trading 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Credit Union 

Administration 2 2 100.0 0 0.0 0 0.0 0 0.0 

American Battle Monuments 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Labor Relations 

Authority 1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Trade Commission 1 0 00.0 1 100.0 0 0.0 1 0.0 

TOTAL 1219 1010 82.9 185 15.2 18 1.5 6 0.5 

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

Percentages may not total 100 because of rounding. 

25
Headquarters case processing 

Table 5: Disposition of Petitions for Review (PFR) of Initial Decisions by Type of Case 

Type of Case Decided Dismissed Settled Denied Denied But 

Reopened Granted 

% % % % % 

Adverse Action by 

 Agency 504 34 6.8 5 1.0 401 79.6 16 3.2 48 9.5 

Termination of 

 Probationers 43 2 4.7 1 2.3 27 62.8 3 7.0 10 23.3 

Reduction in Force 26 1 3.9 1 3.9 18 69.2 2 7.7 4 15.4 

Performance 43 2 4.7 1 2.3 36 83.7 1 2.3 3 7.0 

Acceptable Level of 

 Competence (WIGI) 5 0 0.0 0 0.0 5 100.0 0 0.0 0 0.0 

Suitability 11 2 18.2 0 0.0 6 54.6 1 9.1 2 18.2 

CSRS Retirement: 

 Legal 99 4 4.0 2 2.0 78 78.8 7 7.1 8 8.1 

CSRS Retirement: 

 Disability 28 1 3.6 1 3.6 21 75.0 1 3.6 4 14.3 

CSRS Retirement: 

 Overpayment 10 0 0.0 0 0.0 9 90.0 1 10.0 0 0.0 

FERS Retirement 93 2 2.2 0 0.0 65 69.9 10 10.8 16 17.2 

FERCCA 4 0 0.0 0 0.0 4 100.0 0 0.0 0 0.0 

Individual Right of 

 Action 91 4 4.4 1 1.1 63 69.2 7 7.7 16 17.6 

Other 205 21 10.2 10 4.9 105 51.2 29 14.2 40 19.5 

Total 1162 73 6.3 22 1.9 838 72.1 78 6.7 151 13.0 

Figure 4: Disposition of Petitions for Review of Initial Decisions 

Denied (838)

72%

Dismissed (73)

6%

Granted (151)

13%

Settled (22)

2%

Denied but Reopened 

(78)

7%

Total Number of Petitions for Review: 1,162 

26
Figure 5: Disposition of Petitions for Review Granted 

Initial Decision 

Affirmed (27)

18%

Other (9)

6%

Initial Decision 

Reversed (27)

18%

Case Remanded (88)

58%

Based on 151 Petitions for Review Granted 

Figure 6: Disposition of Petitions for Review Denied but Reopened 

Other (11)

14%

Case Remanded (24)

31%

Initial Decision Reversed (5)

6%

Initial Decision Affirmed (38)

49%

Based on 78 Petitions for Review Denied But Reopened 

27
Table 6: Disposition of Petitions for Review of Initial Decisions by Agency 

Decided Dismissed Settled Denied Denied But 

Reopened Granted 

% % % % % 

Office of Personnel 

Management* 227 7 3.1 3 1.3 168 74.0 19 8.4 30 13.2 

US Postal Service 181 16 8.8 2 1.1 137 75.7 10 5.5 16 8.8 

Veterans Affairs 103 3 2.9 1 1.0 85 82.5 6 5.8 8 7.8 

Air Force 82 6 7.3 1 1.2 51 62.2 13 15.9 11 13.4 

Navy 80 2 2.5 3 3.8 60 75.0 7 8.8 8 10.0 

Army 78 8 10.3 3 3.9 49 62.8 5 6.4 13 16.7 

Homeland Security 67 7 10.5 1 1.5 52 77.6 1 1.5 6 9.0 

Treasury 55 4 7.3 4 7.3 40 72.7 1 1.8 6 10.9 

Defense 48 4 8.3 1 2.1 32 66.7 2 4.2 9 18.8 

Justice 46 3 6.5 2 4.4 29 63.0 3 6.5 9 19.6 

Interior 34 0 0.0 0 0.0 25 73.5 2 5.9 7 20.6 

Agriculture 23 1 4.4 0 0.0 17 73.9 1 4.4 4 17.4 

Transportation 20 2 10.0 0 0.0 12 60.0 3 15.0 3 15.0 

Social Security 

Administration 20 4 20.0 1 5.0 13 65.0 1 5.0 1 5.0 

Health & Human Services 16 1 6.3 0 0.0 12 75.0 1 6.3 2 12.5 

Labor 11 0 0.0 0 0.0 11 100.0 0 0.0 0 0.0 

Commerce 10 0 0.0 0 0.0 7 70.0 2 20.0 1 10.0 

General Services 

Administration 10 1 10.0 0 0.0 7 70.0 0 0.0 2 20.0 

State 7 1 14.3 0 0.0 2 28.6 1 14.3 3 43.9 

Energy 6 0 0.0 0 0.0 5 83.3 0 0.0 1 16.7 

Housing & Urban 

Development 6 0 0.0 0 0.0 5 83.3 0 0.0 1 16.7 

Federal Deposit Insurance 

Corporation 3 0 0.0 0 0.0 3 100.0 0 0.0 0 0.0 

National Mediation Board 3 0 0.0 0 0.0 0 0.0 0 0.0 3 100.0 

Administrative Office of US 

Courts 2 1 50.0 0 0.0 1 50.0 0 0.0 0 0.0 

Consumer Product Safety 

Commission 2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0 

Environmental Protection 

Agency 2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0 

Equal Employment 

Opportunity Commission 2 0 0.0 0 0.0 1 50.0 0 0.0 1 50.0 

National Aeronautics & 

Space Administration 2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0 

* Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator 

of the Civil Service Retirement System and the Federal Employees Retirement System. 

(Percentages may not total 100 because of rounding.) 

28
Table 6: Disposition of Petitions for Review of Initial Decisions by Agency (Cont.) 

Decided Dismissed Settled Denied Denied But 

Reopened Granted 

% % % % % 

Small Business 

Administration 2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0 

Smithsonian Institution 2 0 0.0 0 0.0 0 0.0 0 0.0 2 100.0 

Agency for International 

Development 1 0 0.0 0 0.0 0 0.0 0 0.0 1 100.0 

Court Services & Offender 

Supervision 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

Education 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

Government of the District 

of Columbia 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0 

International Boundary & 

Water Commission 1 0 0.0 0 0.0 0 0.0 0 0.0 1 100.0 

National Credit Union 

Administration 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

Nuclear Regulatory 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0 

Office of Government Ethics 1 0 0.0 0 0.0 0 0.0 0 0.0 1 100.0 

Other 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

Peace Corps 1 0 0.0 0 0.0 0 0.0 0 0.0 1 100.0 

Securities & Exchange 

Commission 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

Tennessee Valley Authority 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 

TOTAL 1162 73 6.3 22 1.9 38 72.1 78 6.7 151 13.0 

29
Summaries of Merit Systems Studies 

Designing an Effective Pay for Performance Compensation System 

As part of a shift away from tenure-based pay increases and towards aligning pay with performance, 

a growing number of Federal Government agencies are implementing pay for performance 

compensation systems. However, agencies need to proceed judiciously to lay the groundwork for an 

effective pay system and to maintain its success over time. 

This report summarizes key decision points that should be considered by any agency contemplating 

a pay for performance compensation strategy. These decisions represent some of the key 

opportunities for tailoring a pay for performance system to best fit an agency’s mission and 

environment. 

In addition, MSPB found that despite the differences that require customization of the pay system, 

successful pay for performance systems also share certain requirements. Boiled down to the essential 

elements, for a pay for performance system to be effective, employees must value the reward offered 

in exchange for performance; understand what performance is expected, believe they can achieve 

that level of performance, and believe that the agency will follow through on its commitments in 

exchange for exceptional performance. 

To achieve these linkages between pay and performance, the report recommends that an agency 

ensure it has certain prerequisites, including adequate funding, an effective performance evaluation 

system, capable supervisors, and a system of checks and balances to preserve fairness, accompanied 

by regular evaluations to ensure the ongoing success of the pay system. 

Contracting Officer Representatives: Managing the Government’s Technical Experts to 

Achieve Positive Contract Outcomes 

The volume of contract spending—$388 billion in fiscal year 2005—demonstrates the importance 

of developing and managing Federal contracts in ways that will ensure the best contract outcomes 

and the best return on the taxpayers’ dollar. While the Government has modernized its contracting 

rules and procedures and improved the management of contracting officers who carry out the 

business aspects of contracting, almost no work has been done to assess agencies’ management of 

contracting officer representatives (CORs). These individuals provide the technical expertise 

necessary to develop and oversee Government contracts. Even the best-managed contract is not 

successful if its deliverables fail to meet the technical requirements of the Government. 

MSPB’s report on CORs provides findings and recommendations based on a survey of CORs from 

10 agencies that, in aggregate, spent 90 percent of the Government’s contracting dollars. The highly 

experienced CORs in these agencies reported that just over half of contracts met expectations in 

terms of the quality, timeliness, completeness and cost of contract deliverables. Somewhat 

surprisingly, simpler contracts did not have better outcomes. 

The study also looked at several aspects of managing CORs. Contrary to regulatory requirements, 

only 50% of CORs were always formally delegated their authority to work on a particular contract, 

and 25% of CORs were never formally delegated their authority. In addition, even the most 

31
experienced CORs reported needing significant training, especially training to keep abreast of 

developments in their technical or functional area. 

The report recommends that agencies do a better job of fulfilling the regulatory aspects of managing 

CORs to include formal delegation of authority, improved COR training, and strategic management 

of the COR workforce. In addition, agencies need to improve the day-to-day management of CORs. 

This includes improving COR selection and assignment, involving CORs early in the contracting 

process, ensuring CORs perform critical pre-award technical contracting tasks, providing enough 

time for CORs to do their contracting work, and rating CORs on the performance of their 

contracting work. The report shows that fulfilling the regulatory requirements for managing CORs 

and managing CORs more effectively were both significantly related to more positive contract 

outcomes. 

Reforming Federal Hiring: Beyond Faster and Cheaper 

This perspectives report brings together the key findings and recommendations from MSPB’s 25 

years of research on hiring issues to help inform hiring reform efforts. The report concludes that the 

Federal Government needs to do a better job recruiting and assessing applicants, managing the 

hiring process, and making merit-based decisions. The Government also needs to look at long-term, 

strategic reform that balances the need for efficient hiring processes with the need to improve the 

quality of hiring decisions. The report’s recommendations focus on how to improve the 

Government’s hiring process and address: 

• Improving recruitment to target and attract applicants with the needed skills. 

• Improving assessment practices to distinguish high potential candidates from the rest. 

• Improving management of the hiring process to ensure agencies have the resources needed to 

carry out quality hiring practices. 

• Improving merit-based decisions to ensure hiring practices do not impede fair and open 

competition or advancement based solely on relative ability. 

Many of the recommendations do not require regulatory change but instead call for agencies to look 

at hiring with a greater focus on quality, especially in the area of assessment instruments. Overall, 

reform should preserve the original values of merit-based hiring and divest the system of rules and 

processes that are unnecessary to support those goals. 

Navigating the Probationary Period After Van Wersch and McCormick

This report discussed two Federal Circuit cases regarding the rights of individuals who may be in a 

probationary or trial period, but who may be entitled to appeal adverse actions. It contains 

recommendations to OPM and to Congress regarding the consequences of these court decisions. 

In Van Wersch v. Health and Human Services (1999), the court addressed the meaning of 5 U.S.C. § 

7511(a)(1)(C), which applies to nonpreference-eligible individuals in the excepted service. It held 

that such an employee could be entitled to appeal an adverse action to the Board even if he were 

serving a probationary period, as long as he had satisfied the 2-year service requirement of 5 U.S.C. § 

7511(a)(1)(C)(ii). Previously, the Board had held that such an employee had no right to appeal and 

adverse action to the Board if he was serving a probationary period, regardless of whether he had 

32
satisfied that 2-year service requirement. Essentially, the court determined the word ‘or’ separating 

the two definitions was disjunctive – meaning a person would qualify if he or she met either 

definition. 

In 2002, McCormick v. Air Force applied this analysis to 5 U.S.C. § 7511(a)(1)(A), which covers 

competitive service employees. The court held that an individual in the competitive service who met 

the 1-year service requirement of 5 U.S.C. § 7511(a)(1)(A)(i) could be entitled to appeal an adverse 

action to the Board even if he were serving a probationary period. Previously, an individual had to 

meet both definitions of employee set out in 5 U.S.C. § 7511(a)(1)(A). Following this case, meeting 

either definition was sufficient for a competitive service employee to qualify for procedural and 

appeal rights. 

These changes created problems for agencies. Following these cases, agencies had to adapt to a new 

way of looking at the statute. In Van Wersch, the court stated, “to the extent that OPM's regulations 

are contrary to the proposition that an individual is an ‘employee’ if he or she meets the 

requirements of either 5 U.S.C. § 7511(a)(1)(C)(i) or (ii), they are invalid.” The court also noted that 

the “courts are the final authorities on issues of statutory construction.” OPM’s regulations, 

however, have not been modified. 

This report was designed to educate practitioners on the meaning of these two cases, to advise OPM 

of the apparent inconsistency between the case law and its regulations and to notify Congress of the 

potential need to modify the language of the law if it has caused an outcome it does not desire. 

 

The Practice of Merit: A Symposium 

In support of MSPB’s role to protect the merit systems, the Board held a one-day symposium at the 

National Press Club in Washington, DC, on how agencies ensure merit when managing their 

workforce under authorities outside the traditional authorities contained in Title 5 USC. Although 

DoD and DHS were most recently granted exemptions to some of Title 5’s provisions, there are 

Federal agencies that have been operating beyond these provisions for some time. Representatives 

from these agencies shared their experiences with others who are in search of better ways to manage 

their workforce that also support the merit system principles. The symposium occurred on April 20, 

2006 and the proceedings from the symposium will be released shortly. 

The Comptroller General of the United States, David Walker, and the Deputy Director of the 

Office of Personnel Management, Dan Blair, served as keynote speakers. Mr. Walker shared his 

experiences about how the Government Accountability Office has transformed into a performancedriven organization. He emphasized the importance of a strategic human capital plan, an outcomeoriented infrastructure, credible internal review and external appeals processes, and effective 

safeguards and accountability. Mr. Blair traced the various changes in the civil service systems from 

the 1940’s to present, noting how the merit principles have remained a constant throughout these 

changes. According to Mr. Blair, one of the lessons to be learned from these changes was that when 

flexibilities are given to agencies, these flexibilities must remain within a coherent framework, which 

includes the merit system principles and adequate safeguards. 

MSPB Chairman Neil A. G. McPhie interviewed Special Counsel Scott Bloch and the Vice 

Chairman of the Public Employee Roundtable, William Bransford, about protecting employees from 

prohibited personnel practices. Mr. Bloch and Mr. Bransford noted that equal employment 

33
opportunity and whistleblowing are the most misunderstood prohibited personnel practices, and 

agreed that educating managers, supervisors and employees of their rights would be key to 

preserving merit and avoiding prohibited personnel practices. 

The symposium also included three panel discussions that focused on how the agencies represented 

ensure merit in their recruitment and placement, pay management, and performance management 

practices. Our panel members were officials from the Office of the Director of National 

Intelligence, the Departments of State, Veterans Affairs, and the Army’s Nonappropriated Funds 

Instrumentality. MSPB also had presenters from the National Institute of Standards and 

Technology, the Office of the Comptroller of the Currency, the Government Accountability Office, 

and the U.S. Postal Service. 

Our speakers showed that while processes might be different, merit can and does flourish under 

alternative systems. In addition, the speakers indicated that there is always room for improvement; 

that their alternative personnel systems were not necessarily exactly right on the first try. The 

speakers also made clear that people are the most critical success factor in any change initiative. 

Rules, regulations and processes are necessary, but people make a system work. Educating them 

about the new personnel system and constantly communicating with them can alleviate fear and earn 

their trust. Getting employees on board is crucial in any transformation effort. 

Accomplishing Our Mission: Results of the Merit Principles Survey 2005 

MSPB conducts a periodic Merit Principles Survey (MPS) to elicit the views of Federal employees 

about the practice of merit in the workplace including working conditions, job satisfaction, and 

interactions with their coworkers and supervisors. This report discusses the views of Federal 

employees who participated in the most recent MPS. It summarizes the responses of 36,926 Federal 

employees who completed this online survey—a representative sample of the 1.8 million full-time, 

permanent employees of the Federal Government. The report reveals that Federal employees 

generally believe they are well managed, have jobs that they like, and are highly motivated by the 

opportunity to help their agencies succeed. 

The survey results confirm that employees at all levels are dedicated to ensuring that their agencies 

achieve their missions, but are concerned about how the Federal Government can maintain a 

qualified and motivated workforce. The MPS 2005 also found continuing high job satisfaction 

despite perceptions of less organizational stability and fear of pending changes in the Federal pay 

system. 

The report presents and explores several challenges that agencies face in the workplace. For 

example, hiring officials are often not satisfied with the applicant pool they must draw from to fill 

Federal job openings. Employees already on the job would like additional training to do their jobs at 

a higher level of performance. A large percentage of nonsupervisory employees feel uninformed 

about performance evaluation, organizational changes, and other issues. Additionally, both 

supervisors and nonsupervisors report a moderate level of serious conflict in the workplace that may 

erode the motivation of some employees to succeed. 

The good news is that most employees and their supervisors have formed good relationships and are 

working together to meet these challenges. A primary finding throughout this report is the 

34
importance of trust between employees and their first-line supervisors. This report was completed 

and submitted for approval near the end of FY 2006. The report was released in March 2007. 

Issues of Merit Newsletter 

MSPB’s Issues of Merit newsletter is designed to offer insights and analyses on topics related to 

Federal human capital management—particularly findings and recommendations from MSPB’s 

independent research—to help improve the Government’s merit systems. The newsletter’s target 

audience includes Federal policy-makers, managers and executives, human resources practitioners, 

social science researchers, and academics. 

MSPB issued four editions of the Issues of Merit newsletter this year. Each of the four issues included 

findings from MSPB’s research, articles to help clarify readers’ understanding of employment issues, 

and perspectives from the Director of the Office of Policy and Evaluation (OPE) about specific 

human capital matters. To communicate research findings, newsletter articles addressed topics such 

as how Contracting Officer Representatives’ training relates to better contract outcomes, improving 

Federal hiring processes by focusing on quality, and findings from the 2005 Merit Principles Survey 

related to the occurrence of prohibited personnel practices in the Federal workforce. Articles 

provided insight into issues like due process, whistleblowing, and how agencies should use the 

probationary period given recent court decisions that counter past practices. The OPE Director 

addressed issues such as how to improve pay for performance implementation by improving 

supervisory selection and how merit can be achieved outside traditional personnel rules. 

35
Significant Actions of the Office of Personnel Management (OPM) 

As required by statute, MSPB reports on the significant actions of OPM. Below, we list and briefly 

discuss the OPM actions in these areas that have the greatest long-term implications for the Federal 

civil service. This list is not, however, by any means exhaustive. 

Policy and leadership 

Guidance on human capital management and continuity of operations planning related to 

pandemic influenza 

OPM developed policy guidance for Federal agencies and employees regarding human capital 

management flexibilities and continuity of operations planning criteria related to a potential 

influenza pandemic. This guidance includes an update of the Telework Guide to provide workplace 

options to Federal agencies during a potential pandemic. 

Significance 

The World Health Organization (WHO), as well as other world-wide health officials, has been 

monitoring a new and severe influenza virus and has urged countries to prepare for the next 

pandemic to mitigate its impact (WHO, 2005 Responding to Avian Influenza Pandemic Threat: 

Recommended Strategic Actions). If such a pandemic were to strike the United States, it could result in 

significant shut-downs of Government operations due to illness. OPM’s guidance is designed to 

help agencies protect the health of the Federal workforce and to ensure continuity of operations. 

Most of the information provided by OPM can also be used to prepare for other emergency 

situations, such as those the Government experienced on September 11, 2001 and during hurricanes 

Katrina and Rita. 

New personnel systems in the Department of Homeland Security (DHS) and the 

Department of Defense (DoD) 

In 2005, OPM worked with DHS and DoD to issue final regulations for the agencies’ new 

personnel systems. The regulations were issued jointly by OPM and the agency involved. These 

regulations depart from longstanding Title 5 practice in the areas of pay, performance management, 

appeal rights and procedures, and collective bargaining. (In the NSPS system there are also certain 

staffing flexibilities added.) 

In 2006, the U.S. Court of Appeals for the District of Columbia struck down the labor relations 

provisions of the DHS regulations, indicating that they unlawfully curtail collective bargaining rights 

for employees. The court also addressed the the mitigation of penalties standard in the appeal 

procedures but held that the issue would not be ripe for review until a mitigation of penalty issue 

arose from implementation of the new procedures. 

Significance 

The DoD and DHS personnel systems are expected to lay the groundwork for broader civil service 

reform. The court’s decision, therefore, may have implications for further Govermentwide reform 

efforts. In the more immediate term, the court’s decision may also hold implications for DoD’s 

37
proposed labor relations reforms. Although the development of these new personnel systems 

included consultation with employee representatives, the decision by the Court of Appeals indicates 

that the process used to develop the regulations may not have been sufficient to ensure appropriate 

employee protections and legal defense. Successful development and implementation of these 

personnel systems will require sustained effort from DHS, DoD and OPM in order to address the 

legal issues regarding these systems, to train managers to use these new delegated authorities, and to 

build employee buy-in which is essential for success. 

Raising public awareness of Federal jobs. 

To help improve the public’s awareness of Federal jobs, OPM launched four television commercials 

highlighting Federal employees talking about their jobs, and OPM is sponsoring Federal career days 

at four universities chosen in part because of their commitment to supporting Federal employment 

opportunities. 

Significance 

Research by numerous organizations (e.g., the Partnership for Public Service, the National 

Association of Colleges and Employers and Hart Teeter) indicates that potential applicants, 

particularly younger college graduates, lack knowledge about Federal jobs, which hampers the 

Government’s recruitment efforts. OPM’s efforts to increase awareness may help to address this 

hurdle. However, OPM needs to ensure that marketing efforts are targeted to appropriate audiences 

because Federal jobs are still highly competitive and not everyone will qualify for vacant positions. 

Guidelines for Managerial Development 

OPM released “Guidelines for Managerial Development” to Chief Human Capital Officers. The 

guidelines address criteria to be met by agency leadership on the issue of management development. 

This includes a list of minimum requirements that should be part of leadership development 

programs, and a list of best practices and special considerations concerning managerial development. 

Significance 

Traditional managerial roles are going to be vitally important to implementing new personnel 

systems, particularly the new DHS and DoD pay for performance systems. In particular, 

supervisors and managers need to be adept at selecting employees, communicating with them, 

evaluating performance, and managing time. Therefore, agencies will need to be especially careful 

about how they select and develop supervisors to ensure they focus on managerial capabilities rather 

than technical expertise. The guidelines set forth by OPM could help focus agencies on this 

requirement, but the guidelines must be put into action by the agencies to be fully effective. 

Senior Executive Service (SES) pay for performance system

In 2004, OPM instituted a pay for performance senior executive pay system designed to align 

executive pay and bonuses with organizational results. In 2006, GAO evaluated the pay system and 

found that 23 out of 24 certified agencies received provisional certifications. GAO noted that this is 

not unusual in early stages but urged OPM to monitor the trend to ensure provisional certifications 

do not become the rule. 

38
Significance 

The SES pay for performance system could lay the groundwork for broader civil service reform. 

Therefore, OPM should continue to pay close attention to the challenges faced during these first 

few years of implementation, address them as appropriate, and note the lessons learned that can be 

applied to modernizing the pay and performance management systems of employees at other levels. 

Compliance and accountability 

Implementation of the President’s Management Agenda 

OPM continues to evaluate agency performance on the human capital element of the President’s 

Management Agenda (PMA) and seeks to institutionalize a strategic approach to managing human 

capital. This year, OPM worked with agencies to specifically focus on assessing and improving 

performance management systems. 

Significance 

As part of the PMA, 25 out of 26 agencies used the Performance Appraisal Assessment Tool 

(PAAT) to assess how well their performance appraisal programs support a high performing 

organization. OPM is analyzing agency submissions and working with agencies to address identified 

weaknesses in their programs. In general, OPM reports agency progress in key performance areas of 

the PMA. OPM reports that 81 percent of agencies have performance appraisal systems which link 

to agency mission, 73 percent have closed critical talent gaps, and the Governmentwide average 

time-to-hire is 34 days. Although the long-term effects of the PMA are unknown, such efforts to 

increase attention to workforce needs and to improve agency HR practices are welcome.

Agency annual survey regulations 

As part of the National Defense Authorization Act for Fiscal Year 2004, Congress directed each 

Executive Branch agency to conduct an annual employee survey and post the results on its agency 

Website. Originally, OPM issued proposed regulations prescribing 28 core questions to be included 

on all agency surveys. In August 2006, OPM issued the final rule that prescribes a total of 45 

questions to be included on all agency surveys. 

Significance 

As MSPB pointed out in its 2005 Annual Report, there are several potential drawbacks to the annual 

survey requirement. These include lack of time to administer, analyze and act on survey results; 

survey fatigue; and lack of resources and expertise needed to carry out an annual survey. With the 

addition of 17 questions to the original set, the concerns are magnified. Therefore, MSPB reasserts 

the recommendation for OPM to play a significant role in evaluating the impact the new 

requirement has on the Government’s ability to effectively use surveys.

Federal Human Capital Survey

OPM administered the third round of the Governmentwide Federal Human Capital Survey to more 

than 400,000 employees. 

39
Significance

The FHCS contained 84 questions developed to gauge employee perceptions regarding the quality 

of their work environment, including how effectively they are led and managed, what opportunities 

they have to grow professionally, and whether they feel their contributions are valued. The results 

should help agencies continue to measure their performance in terms of human capital management. 

OPM has made this survey instrument capable of meeting the above mentioned annual survey 

requirement for agencies in the even numbered years starting in 2006. 

Delivery of human resources products and services 

Providing agencies with hiring tools 

OPM is providing agencies with tools to help them assess their hiring needs and processes. In June, 

it introduced the new Career Patterns approach to hiring which provides agencies with a workforce 

analytical tool and guide book to assist their workforce planning efforts. In October, it released a 

“hiring toolkit” Web site that provides case studies, assessment instruments, and other guidance to 

assist agencies in improving their hiring processes. OPM has also conducted agency training on 

available hiring flexibilities, showcased successful practices to reduce the time to hire, and developed 

a “hiring makeover toolkit” to help streamline and reengineer agency hiring processes. 

Significance 

In the past, some agencies have complained that OPM communication, information-sharing, and 

guidance is sometimes lacking (see GAO, Office of Personnel Management: OPM is Taking Steps to 

Strengthen Its Internal Capacity for Leading Human Capital Reform). The intended outcome of the 

initiatives, to improve the Federal hiring processes, are a step in the right direction to communicate 

with agencies about best practices and provide guidance and interactive tools that may help them 

improve their hiring processes. 

Clearing Security Clearance Backlogs 

In February 2005, the background investigations function of the Department of Defense was 

transferred to OPM—along with a 145,000 case backlog. Through increased staffing and the use of 

technology, OPM testified that it has managed to reduce that backlog by 90 percent—to just 14,000 

cases (as of July 2006). However, a recent GAO report calls into question the timeliness, 

completeness, and accuracy of Federal background investigations under OPM’s jurisdiction (DoD 

Personnel Clearances: Additional OMB Actions are Needed to Improve the Security Clearance Process). 

Significance

With the increased emphasis on homeland security, background investigations have become an 

especially important part of the hiring process. These investigations are crucial to ensuring that 

Federal employees and contractors are suitable for holding security clearances or positions of public 

trust. MSPB reported in a 2000 study that background checks can be a key barrier to timely job 

offers. The problem only worsened after September 11, 2001, with an increase in agency clearance 

requests. To deal with the issue, Congress laid out deadlines for completing clearance investigations 

in the Intelligence Reform and Terrorism Prevention Act of 2004. OPM reports that it is on track to 

40
meet the new requirements, but more oversight may be necessary to ensure that the requirements 

are met. 

Management of Federal Employee Benefit Programs 

OPM continued efforts to contain increases in health insurance costs. In fact, premiums for 2007 

are expected to rise only 1.8 percent on average—a much smaller rise than in recent years. In 

addition, OPM has established the new Supplemental Dental and Vision Benefits Program, available 

to Federal employees, with the first open season occurring in the fall of 2006. 

Significance 

Employee benefit programs do not have immediate implications for public trust and merit system 

integrity. Nevertheless, these programs are essential to recruiting and retaining good employees, 

account for a substantial portion of personnel costs, and have significant long-term fiscal 

implications. 

 

41
Financial Summary 

Fiscal Year 2006 Financial Summary 

(dollars in thousands) 

Financial Sources 

Appropriations $35,244 

Civil Service Retirement and Disability Trust Fund 2,579 

Total Revenue $37,823 

Obligations Incurred 

Personnel Compensation $24,107 

Personnel Benefits 5,460 

Benefits to Former Employees 15 

Travel of Persons 492 

Transportation of Things 134 

Rental Payments 3,256 

Communications, Utilities, and Miscellaneous 332 

Printing and Reproduction 201 

Other Services 2,477 

Supplies and Materials 330 

Equipment 814 

Total Obligations Incurred $37,618 

Obligated Balance $205 

43