The Chairman 

U.S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, DC 20419 

March 1990 

Sirs: 

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

Protection Board. This report reviews the significant activities of the Board during the past fiscal year and includes a 

special section on the Whistleblower Protection Act of 1989 and Board activities implementing the Act. 

During the fiscal year, administrative judges in the Board's regional offices issued decisions on almost 7,000 

appeals and in nearly 900 addendum cases (attorney fees, compliance proceedings, and remands). The Board issued 

decisions on over 1,100 petitions for review of the initial decisions of administrative judges and in 140 addendum case 

proceedings. In this same period, 94 percent of final Board decisions reviewed by the Court of Appeals for the Federal 

Circuit were unchanged. 

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

revised regulations in plain English, continued progress in pursuing alternative dispute resolution, and the publication 

of four major reports based on merit systems studies and Office of Personnel Management oversight reviews. 

Respectfully, 

Daniel R. Levinson 

The President 

The President of the Senate 

The Speaker of the House of Representatives 
TABLE OF CONTENTS 

Page 

Board Mission and Organization.................................................. 6 

Mission ............................................................................ 6

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

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

Regional Board Officials ................................................. 14

Highlights of Fiscal Year 1989 Activities................................... 16 

The Whistleblower Protection Act of 1989 

and the MSPB Response....................................................... 20 

Legislative History........................................................... 20

Changes Made by the 

Whistleblower Protection Act of 1989.......................... 21

The MSPB Response ....................................................... 27

Impact on Cases in FY 1989 ........................................... 30

Adjudication: Appellate Jurisdiction ......................................... 31 

Initial Appeals................................................................. 31

Addendum Cases ............................................................ 36

Petitions for Review......................................................... 36

Special Panel .................................................................. 38

Significant Activities........................................................ 39

Adjudication: Original jurisdiction ............................................ 41 

Litigation.................................................................................. 46 

Reviews of OPM Significant Actions 

and Merit Systems Studies .................................................. 47 

Outreach Activities ................................................................... 51 

Administration, Finance, and Human Resources ....................... 55 

Administration................................................................ 55

Financial Statement........................................................ 59

Human Resources........................................................... 60

Appendix A - Significant Board Decisions 

Appellate Jurisdiction Cases ..................................... 64 

Appendix B - Significant Board Decisions 

Original Jurisdiction Cases ....................................... 71 

Appendix C - Significant Litigation .................................................. 73

Appendix D - Special Studies..................................................... 76 
Board Mission and Organization 

Mission 

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency 

in the Executive branch that serves as the guardian of Federal merit systems. The 

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

agency management, that Executive branch agencies make employment decisions in 

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

free of prohibited personnel practices. The Board has a statutory mandate to 

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

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

the Hatch Political Activities Act, it exercises jurisdiction over state and local 

government employees in federally-funded positions. 

The Board accomplishes its mission by: 

Hearing and deciding employee appeals from agency personnel actions (appellate 

jurisdiction); 

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

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

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

branch to determine whether they are free of prohibited personnel practices; and 

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

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

principles.
The Board was established 

by Reorganization Plan No. 2 of 

1978 and codified by the Civil 

Service Reform Act of 1978 

(CSRA), Pub.L. No. 95454. The 

CSRA, which became effective 

January 11, 1979, replaced 

the Civil Service Commission 

with three new independent 

agencies: the Office of Personnel Management, which 

manages the Federal work 

force; the Federal 

Labor Relations Authority, 

which oversees Federal labormanagement relations; and the 

Board. The Merit Systems Protection Board (I to r) Member Samuel 

Bogley Vice Chairman Maria Johnson, and Chairman 

Daniel Levinson.

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

was given the new responsibilities to perform merit systems studies and to review the 

significant actions of OPM. The CSRA also created the Office of Special Counsel, which 

investigates allegations of prohibited personnel practices, prosecutes violators of civil 

service rules and regulations, and enforces the Hatch Act. Though established as an office 

of the Board, the Special Counsel has functioned independently as a prosecutor of cases 

before the Board. In July 1989, under the Whistleblower Protection Act (Pub.L. No. 101-12), 

the Office of Special Counsel became an independent Executive branch agency. 

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

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

appointed by the President, confirmed by the Senate, and serve overlapping, non-renewable 7-

year terms. 
Board Members 

Chairman 

Daniel R. Levinson became Board 

Chairman on August 15, 1986, following 

Presidential nomination and Senate 

confirmation. At the time of his appointment, 

Mr. Levinson was General Counsel of the 

U.S. Consumer Product Safety Commission, 

a position he had held since March 1985. 

Previously he served for two years as Deputy 

General Counsel of the Office of Personnel 

Management. Prior to joining OPM, Mr. 

Levinson was, for six years, an associate and 

partner in the Washington, DC firm of 

McGuiness & Williams, where he represented 

primarily private sector management in a 

wide variety of employment law matters. 
Vice Chairman 

Maria L. Johnson was nominated to the 

Board by President Reagan on March 18, 

1983. She was confirmed by the Senate on 

May 6, 1983, and was designated Vice 

Chairman on September 19, 1983. From 

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

Johnson served as the Board's Acting Chairman. At the time of her appointment, Ms. 

Johnson was a commercial loan officer with 

the Security National Bank in Anchorage, 

Alaska. From 1978 to 1981, she served as an 

associate with the law firm of Lambert, Griffin 

& McGovern in Washington, DC. 

Member 

Samuel W. Bogley was nominated by 

President Reagan to be a Member of the 

Board on September 7, 1988. He was 

administered the oath of office as a recess 

appointee on November 23, 1988. Mr. Bogley 

served as Lieutenant Governor of the State of 

Maryland from 1979 through 1982. He 

began his public service career in 1962 with 

the Maryland National Capital Park and 

Planning Commission and became a member 

of the Prince George's County Council in 

1970. 
Board Organization 

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

Each heads his/her individual office. The Chairman, by statute, is the chief executive and 

administrative officer of the Board. 
Executive Director Lucretia Myers 

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

and regional offices, under authority delegated by the Chairman. This delegation includes the 

authority to make final decisions in the areas of personnel management, fiscal management, 

document security, procurement and contracts, and general administrative support services. 

The Executive Director reports directly to the Chairman. 

The Deputy Executive Director assists the Executive Director in the management of the 

operations and programs of the Board's headquarters and regional offices. All headquarters 

offices, except the Office of the Inspector General, report to the Deputy Executive Director. 

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

offices and reviews the quality of initial decisions issued by administrative judges in the 

regional offices. 

The MSPB Regional Offices are located in 11 major metropolitan areas throughout the 

United States: Atlanta, Boston, Chicago, Dallas, Denver, New York, Philadelphia, St. Louis, 

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

appeals filed with the Board. Administrative judges in the regional offices have the primary 

function of issuing fair, timely, and well-reasoned decisions on all appeals. 
The Office of Appeals Counsel assists the Board in adjudicating petitions for review from 

initial decisions issued by administrative judges in the regional offices. The office receives and 

analyzes the petitions, researches applicable laws rules and precedents, and submits proposed 

opinions to the Board members for their final adjudication. It also processes interlocutory appeals on matters still pending before the regional offices, makes recommendations to the 

Board on motions filed during the review process, makes recommendations on reopening 

appeals on the Board's own motion, and provides analytical research memoranda to the Board 

of legal issues. 

Deputy

Executive

Director

Michael

Crum and

Executive

Assistant

Barbara

Wade

The Office of the General Counsel is legal counsel to the Board. The office provides advice to 

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

operations. It represents the Board in litigation, prepares proposed enforcement decisions and 

orders, reviews OPM regulations, and drafts proposed final decisions for the Board in original 

jurisdiction cases. The office manages legislative policy, congressional relations, and public 

affairs functions for the Board. It is also responsible for conducting the agency's ethics 

program. 

The Office of Administrative Law Judge hears cases governed by the Administrative 

Procedure Act and other cases assigned by the Board. 

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

timely adjudication. These include receiving and processing petitions for review and actions 

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

issuing the Board's Opinions and Orders. The Clerk is also responsible for the Board's records, 

correspondence, and reports management programs. This office certifies official records to the 

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

Board's Freedom of Information Act, Privacy Act, and Government in the Sunshine Act 

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

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

oversight review of the Office of Personnel Management. Reports of these studies are submitted 

to the President and the Congress, as required by law. 

The Office of Management Analysis develops and coordinates internal management 

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

the Congress, the annual report on the Board's decisions in appellate and original jurisdiction 

cases, and public information publications. 

The Office of Administration manages the Board's administrative operations. It is made up 

of four divisions: The Financial and Administrative Management Division administers the 

budget, accounting, procurement, property management, physical security, and general services functions of the Board. The Personnel Division manages personnel programs and assists 

managers, employees, and applicants for employment. It administers staffing, classification, 

employee relations, performance management, payroll, personnel security, and training 

functions. The Equal Employment Division implements the Board's equal employment 

opportunity programs, including developing annual EEO action plans and procedures for 

processing discrimination complaints. It furnishes advice and assistance on affirmative action 

initiatives to the Board's offices. The Information Resources Management Division develops, 

implements, and maintains the Board's automated information systems in order to help the 

Board manage its caseload efficiently and carry out it administrative responsibilities. 

The Office of the Inspector General is the Board's internal auditor. The independent 

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

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

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

the Board in order to promote economy and efficiency, to prevent and detect fraud and abuse, 

and to advise the Chairman and Executive Director of any problems and deficiencies detected. 

The Inspector General reports directly to the Executive Director. 
Mark Kelleher R.J. Payne William Carroll Martin W. 

Director of Atlanta Boston Baumgaertner 

Regional Operations Chicago 

Paula A. Latshaw Gail E. Skaggs Sean P. Walsh Lonnie Crawford 

Dallas Denver New York Philadelphia 

Earl A. Witten Denis Marachi Carl Berkenwald P.J. Winzer 

St. Louis San Francisco Seattle Washington, DC
Atlanta Regional Office 

Alabama, Florida, Georgia, Mississippi, 

North Carolina, and Sout Carolina 

Boston Regional Office 

Connecticut, Maine, Massachusetts, New 

Hampshire, Rhode Island, and Vermont 

Chicago Regional Office 

Illinois, Indiana, Michigan, Minnesota 

Ohio, and Wisconsin 

Dallas Regional Office 

Arkansas, Louisiana, Oklahoma, and Texas 

Denver Regional Office 

Arizona, Colorado, Kansas, Montana, 

Nebraska, Nevada, New Mexico, North 

Dakota, South Dakota, Utah, and Wyoming 

New York Regional Office 

New York, Puerto Rico, Virgin Islands, and 

the following counties in New Jersey: 

Bergen, Essex, Hudson, Hunterd on, Morris, 

Passaic, Somerset, Sussex, Union, and 

Warren 

Philadelphia Regional Office 

Delaware, Pennsylvania, Virginia (except 

cities and counties served by Washington 

Regional Office - see below), West Virginia, 

and the following counties in New Jersey: 

Atlantic, Burlington, Camden, Cape May, 

Cumberland, Gloucester, Mercer, 

Middlesex, Monmouth, Ocean, and Salem 

St. Louis Regional Office Iowa, 

Kentucky, Missouri, and Tennessee 

San Francisco Regional Office 

California 

Seattle Regional Office 

Alaska, Hawaii, Idaho, Oregon, Washington, and 

Pacific overseas areas 

Washington Regional Office 

Washington, DC, Maryland, all overseas areas 

not otherwise covered, and the following cities 

and counties in Virginia: Alexandria, Arlington, 

Fairfax City, Fairfax County, Falls Church, 

Loudoun, and Prince William 
In Fiscal Year 1989, the Board's regional offices maintained an already impressive record of 

case processing timeliness. Decisions on initial appeals were issued within the Board's 

established 120-day time standard in 

99.7 percent of all cases. The Board's 

administrative judges issued 6,953 

decisions on initial appeals, an increase 

of over 500 decisions from the previous 

fiscal year. Voluntary settlements 

among the parties to an appeal were 

achieved in 49 percent of the initial 

appeals that were not dismissed. 

At headquarters, the Board issued 

decisions on 1,281 petitions for review 

(including addendum case decisions), a 

decrease of just over 100 decisions from 

the previous fiscal year. The Board also 

decided 23 cases (including addendum 

cases) arising under its original 

jurisdiction, 8 more than in the 

previous fiscal year. These cases 

included actions brought by the Special 

Counsel against employees alleged to have violated the Hatch Act, Special Counsel stay 

requests, and proposed disciplinary actions against administrative law judges. 

Receptionist Monteil Browning and 

Technical Assistant Cora Gibson 

In Fiscal Year 1989, the Board continued to maximize use of its resources to accomplish its 

stated "Improvement Objectives." These are: 

To ensure the quality of decisions and the adjudicatory process; 

To enhance the merit systems studies and OPM oversight functions; 

To improve the effectiveness of outreach activities; and 

To continue to improve management efficiency and effectiveness. 
In the area of adjudication, the Board has continued its programs to ensure well-reasoned 

decisions both in the regional offices and at headquarters. Under the strengthened quality 

review program, all administrative judges in the regional offices have been reviewed with 

respect to the quality of their initial 

decisions. Uniform jurisprudence has 

been promoted among the regions, and 

there has been further training for 

administrative judges. 

The Board continues to encourage use 

of alternative means of dispute 

resolution to achieve settlement between 

the parties. The Board's administrative 

judges have attended the National 

Judicial College and other training 

programs to improve their skills in this 

area. The rate of settlement increased 

dramatically during the fiscal years 1984 

through 1988 and rose slightly (from 48 

to 49 percent) during the last fiscal year. 

The greater use of settlement procedures 

has resulted in significant cost savings, 

without impinging on the rights of the parties. The Board estimates direct cost savings from the 

settlement program of over $3 million for the fiscal years 1987-89. 

Administrative Judges James Freet, Suanne Strauss, 

and Joseph Hartman 

At headquarters, the Board has continued its concentration on issuing precedential 

decisions in cases involving "major issues," so that these decisions may be used in the 

adjudication of other cases involving similar issues. In addition, fewer short form Orders 

summarily affirming initial decisions have been issued, with a corresponding increase in Board 

Opinions. 

During the fiscal year, the Board issued four reports based on its merit systems studies and 

OPM oversight reviews. They included a retrospective review of the significant activities of OPM 

since enactment of the Civil Service Reform Act of 1978 and the Board's first study of a nonTitle 5 merit system, that of the Tennessee Valley Authority. In addition to these reports, the 

Board completed work on four other reports to be published early in FY 1990. 

The Board has emphasized outreach activities in order to promote a greater understanding 

of the Board's practices and procedures, and of important issues in Federal personnel law, 

among the constituencies that deal with the Board. This emphasis is reflected in the number of 

appearances made by Board members, senior headquarters staff, and regional office directors 

and administrative judges at meetings, conferences, and training programs. In FY 1989, the 

Board completed the "plain English" revision of its regulations and published them, as interim 

regulations for comment, in the Federal Register. It also launched a new series of public 

information publications with the issuance of "An Introduction to the MSPB." Publications 

dealing with the Board's appeals procedures and the special provisions applying to whistleblower appeals were to be issued early in FY 1990.
 

 

Attorney Robert Kelley and Administrative Judges Barry Booker and Sandra Squire In the 

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

perform its adjudicatory and studies functions more efficiently and effectively. With the 

development of a 5-Year Information Resources Management Strategic Plan, the Board has a 

detailed guide to follow to ensure the most effective use of computer technology. The Board 

continued its migration to an IBM AT-compatible computer environment and completed the 

functional requirements and design phase for its new Case Management System. The Board 

also acquired desktop publishing capability, which permits more timely and cost-effective 

design and layout of publications in-house. 

Without question, the most significant outside event affecting the Board during the fiscal year 

was the enactment of the Whistleblower Protection Act of 1989. This Act made the most 

extensive changes in the Board's jurisdiction and procedures since its establishment by the 

CSRA. While most attention was focused on the new individual right of action that permits 

whistleblowers to appeal directly to the Board if the Special Counsel does not act on their 

complaints, the Act also made numerous changes that affect non-whistleblower cases. 

 The Whistleblower Protection Act became effective July 9, 1989. Under the savings provisions 

of the Act, it does not apply to cases pending as of that date. As a result, the Board had little 

case activity resulting from the Act's new provisions by the end of the fiscal year. The Board 

devoted considerable time, and resources, however, to analysis of the Act's provisions, 

development of implementing regulations, training of staff, and dissemination of information to 

the public about the Act. 
The following section of this report provides information on the Whistleblower Protection Act 

and the Board's activities during FY 1989 in response to its enactment. 

Confidential Assistant Robyne Gordon and Administrative Assistant Danny 

Smith of the Office of the Chairman 
The Whistleblower Protection 

Act of 1989 

and the MSPB Response 

Legislative History 

Legislation to provide whistleblower protection is based on the premise that legitimate 

whistleblowers contribute to the integrity and efficiency of Government by exposing fraud, 

waste, and abuse. The CSRA was intended to provide such protection and thereby encourage 

whistleblowing. By the mid-1980's, however, various members of Congress had concluded that 

the Act had failed to achieve this purpose and that new legislation was needed. 

In the Congressional debate over whistleblower protection, the Board's studies of this issue 

have been cited frequently. In a 1980 survey of Federal employees, the Board found that 20 

percent of the respondents who perceived problems in their agencies did not report them for 

fear of retaliation. When the Board conducted a follow-up survey in 1983, that figure had 

increased to 37 percent. These survey results, and the fact that so few whistleblower 

complaints to the Special Counsel resulted in corrective action being sought from the Board, 

have been cited to support the need for new legislation. 

The first version of the Whistleblower Protection Act was introduced in the 99th Congress 

and was passed by the House of Representatives in September 1986. There was no action by 

the Senate, however, before the Congress adjourned. In the 100th Congress, the bill was 

reintroduced and was reported by the full House Post Office and Civil Service Committee in 

August 1987. On the Senate side, a modified version of the bill was passed in August 1988. 

During the weeks that followed, negotiations between the House and Senate sponsors, and between the sponsors and the administration, resulted in an amended bill that was passed by 

both the House and Senate in early October. Because of objections raised by the Department of 

Justice to certain provisions of the bill, however, President Reagan did not sign it into law. 

Early in the 101st Congress, the Whistleblower Protection Act was reintroduced in the form 

that it had passed both houses the previous October. The Bush administration encouraged the 

Justice Department to work with the congressional sponsors to develop a bill that would satisfy 

the Department's objections. As a result, a compromise version, supported by the 

administration, was passed by the Senate on March 16, 1989 and by the House on March 21, 

1989. President Bush signed the bill, as Public Law No. 101-12, on April 10, 1989. Its 

provisions became effective ninety days later, on July 9, 1989. 

Throughout the period of congressional consideration of new whistleblower protection 

legislation, the Board monitored the bills and commented on the potential impact on the 

Board's operations. The Board offered testimony and technical assistance, when requested. 
Changes Made By 

The Whistleblower 

Protection Act 

Of 1989 

Despite the title of the bill, the Whistleblower Protection Act of 1989 does a great deal more 

than simply strengthen the statutory protections for whistleblowers. As the bill moved through 

the Congress, it acquired various provisions that affect cases the Board adjudicates under both 

its appellate and original jurisdiction. As a result, certain provisions of the Act apply only to 

appeals filed with the Board by whistleblowers. Other provisions apply to Board appeals 

generally, and still others apply to the Board's procedures in original jurisdiction cases brought 

by the Special Counsel. Other provisions affect judicial review of Board decisions and the 

Board's authority to defend its decisions in court. The Act also makes the Office of Special 

Counsel, established by the CSRA as an office of the Board, a separate independent agency in 

the Executive branch. Taken together, these provisions constitute the most extensive changes 

in the Board's jurisdiction and procedures since enactment of the CSRA in 1978. 

Changes Affecting Whistleblower Appeals 

The Act expands Board jurisdiction by providing a new individual right of action for 

whistleblowers. Under the CSRA and subsequent OPM regulations, the type of action being 

appealed and the eligibility of the individual (employee, former employee, or applicant for 

employment) to appeal the particular action determines whether the Board has jurisdiction 

over the appeal. An action is appealable to the Board if the appeal is authorized by any law, 

rule, or regulation. 

Under the individual right of action provision of the Whistleblower Protection Act, however, 

it is the allegation that an action was based on the individual's whistleblowing that determines 

the appeal right to the Board. Since the individual right of action applies with respect to any 

personnel action that may be the subject of a prohibited personnel practice complaint to the 

Special Counsel, and to any individual who is covered under the prohibited personnel 

practices statute [See 5 U.S.C. 2302(a)], the new law permits appeals to the Board of actions 

that were not previously appealable, and appeals from individuals that did not previously have 

appeal rights, if the individual alleges that the action was based on whistleblowing and the 

other requirements of the individual right of action provision are satisfied. 

Under this right, a Federal employee, former employee, or applicant for employment may 

appeal a personnel action allegedly based on whistleblowing to the Board if he or she first files 

a complaint with the Special Counsel, and the Special Counsel does not seek corrective action 

from the Board on his or her behalf. Previously, an individual subject to a personnel action 

allegedly based on whistleblowing, that was not otherwise appealable to the Board, had no 

recourse if the Special Counsel did not act on his or her complaint. 
The requirement that the individual seek the Special Counsel's assistance first applies only 

with respect to personnel actions that are not appealable to the Board under any other law, 

rule, or regulation. If the action is appealable to the Board, the individual may appeal directly 

to the Board, regardless of whether whistleblowing is an issue in the case. 

The Act's provisions applying to these individual right of action cases permit a whistleblower 

to seek corrective action from the Board within 60 days after being provided notice by the 

Special Counsel that the investigation of the whistleblower's complaint is being terminated. The 

whistleblower may also appeal to the Board if 120 days have passed since filing the complaint 

with the Special Counsel and the Special Counsel has not notified the individual that the office 

will seek corrective action. 

The Act includes a number of procedural protections for whistleblowers. After an individual 

exercises the right to appeal to the Board, the Special Counsel may not seek corrective action 

without the individual's consent. A whistleblower appealing to the Board under the individual 

right of action provision may ask the Board to stay the personnel action. The Board's normal 

time limits for completion of discovery may be waived to ensure that the whistleblower has 

sufficient time to obtain needed information. In adjudicating an individual right of action 

appeal, the Board may not consider a decision by the Special Counsel to terminate an 

investigation of the whistleblower's complaint. The Board must order corrective action if the 

individual demonstrates that his or her whistleblowing was "a contributing factor" in the 

personnel action, unless the agency demonstrates by clear and convincing evidence that it 

would have taken the action in the absence of the individual's whistleblowing. 

The Whistleblower Protection Act also makes the individual right of action provisions 

applicable to adverse action appeals to the Board. Since adverse actions are directly 

appealable to the Board, of course, there is no requirement that the appellant seek corrective 

action from the Special Counsel first. 

The Act also amends the statutory definition of the prohibited personnel practice described 

in 5 U.S.C. 2302(b)(8)—taking or failing to take an action based on whistleblowingto include 

threatening to take or not take an action. The words "because of" are substituted for "as a 

reprisal for" before the word "whistleblowing" so that the motivation of the official taking the 

action need not be established. As a limitation on covered disclosures, the word "gross" is 

added before "mismanagement" so that the remedies provided do not become available to 

individuals who make disclosures of trivial matters. 

Changes Affecting Appeals Generally 

Of the Whistleblower Protection Act provisions applying to all appeals, the one granting 

interim relief to prevailing appellants is expected to have the greatest impact. Under this 

provision, when an appellant is the prevailing party in an appeal to the Board, he or she will be 

granted the relief provided in the initial decision of the Board's administrative judge pending 

the outcome of any petition for review filed with the Board. Exceptions are provided if the 

administrative judge determines that interim relief is not appropriate, or if the decision requires 

the appellant to return to the place of employment and the agency determines that such a 

return would be unduly disruptive. If the agency makes such a determination, it must restore 

the appellant to current pay and benefits status. However, the Act states that the interim relief 

provision is not to be construed as requiring payment of back pay or attorney fees until the 

Board's decision is final. 
The Act provides for payment of reasonable attorney fees and other reasonable costs 

incurred if an appellant is the prevailing party and the Board's decision is based on a finding 

of any prohibited personnel practice. The Act limits the right of the Special Counsel to 

intervene in Board appeals by providing that, in any proceeding before the Board involving an 

action under the new individual right of action for whistleblowers or an appeal under 5 U.S.C. 

7701, the Special Counsel may intervene only with the consent of the appellant. The Act also 

establishes that an individual's right to appeal to the Board is not affected by the individual's 

decision to retire when faced with a proposed action. 

Changes Affecting Original Jurisdiction Cases 

The Whistleblower Protection Act broadened two provisions in the prohibited personnel 

practices statute, thereby increasing the potential for the Special Counsel to bring corrective 

and disciplinary action complaints to the Board. The amendment to the provision prohibiting 

taking a personnel action based on whistleblowing [5 U.S.C. 2302(b)(8)] has been discussed 

above. The provision prohibiting taking a personnel action based on an individual's exercise of 

an appeal right [5 U.S.C. 2302(b)(9)] has been similarly amended to include threatening to take 

or not take an action and to substitute the words "because of" for "as a reprisal for." In 

addition, the provision has been extended to also cover actions taken because of the exercise 

of any complaint or grievance right, testifying for or assisting any individual in the exercise of 

a protected right, cooperating with or disclosing information to an inspector general or the 

Special Counsel, and refusing to obey an order that would require the individual to violate a 

law. 

The procedures for the Special Counsel to obtain a stay of a personnel action from the 

Board are amended by the Act. The 3-stage procedure established by the CSRA is replaced by a 

2-stage procedure. Any member of the Board may grant a Special Counsel stay request for 45 

days. If the request is not denied within three calendar days, it is automatically granted by 

operation of law. The full Board may extend the stay for any period it considers appropriate, 

after first allowing the agency to comment on any proposed extension. 

The Act also provides that when the Special Counsel seeks corrective action from the Board on behalf of a 

whistleblower, the Board must order corrective action if the Special Counsel establishes that the 

whistleblowing was "a contributing factor" in the personnel action, unless the agency 

demonstrates by clear and convincing evidence that it would have taken the action in the 

absence of the individual's whistleblowing. This provision parallels the burden and degree of 

proof provision in the individual right of action section of the Act. 

Changes Affecting Both Appellate and Original Jurisdiction Cases 

The Whistleblower Protection Act made a number of changes with respect to the Board's 

subpoena authority. Previously, only the Board members and the Board's Administrative Law 

Judge had the authority to issue subpoenas and to order the taking of depositions and 

responses to interrogatories. The Act permits the Board to delegate this authority to any 

employee of the Board. The Act also provides for service of subpoenas on individuals in 

foreign countries and for enforcement of such subpoenas by the U.S. District Court for the 

District of Columbia. Since the Special Counsel does not have authority to seek enforcement 

of its subpoenas, the Act provides for the Special Counsel to ask the Board to seek 

enforcement of Special Counsel subpoenas by a U.S. district court. 
The Act explicitly grants to the Board the authority to issue protective orders during the 

pendency of any proceeding before the Board or during a Special Counsel investigation. The 

Board may issue any order that may be necessary to protect a witness or other individual from 

harassment and may do so on its own motion, or at the request of the Special Counsel or any 

other person, whether or not a party to the case. 

Another new provision of the Act directs the Board to prescribe regulations under which any 

employee who is aggrieved by the failure of any other employee to comply with an order of the 

Board may petition the Board for enforcement of the order. The Board's existing regulations 

provided for petitions for enforcement only from parties. 

Changes Affecting Judicial Review and Board Litigating Authority 

With respect to Board decisions in Special Counsel corrective action cases, the Whistleblower Protection Act 

provides that any employee, former employee, or applicant for employment who is adversely 

affected by the Board's order may seek judicial review in the U.S. Court of Appeals for the 

Federal Circuit. The Act also provides that an employee subject to a final Board order in a 

Special Counsel disciplinary action case (other than Hatch Act cases involving state or local 

employees in federally-funded positions) may seek judicial review in the Federal Circuit. 

Under the individual right of action section of the Act, a whistleblower may seek judicial 

review of the Board's decision in the Federal Circuit, as is the case with Board decisions in all 

other appeals (other than "mixed cases" involving an issue of prohibited discrimination). 

Taken together, these provisions should ensure greater consistency in judicial review of Board 

decisions. 

Finally, the Act overturns a 1987 order issued by the Federal Circuit that eliminated the 

Board as respondent in appeals from its decisions in cases that it had dismissed for lack of 

jurisdiction or for other procedural reasons. The Act provides that the Board shall be the named 

respondent in judicial review of its decisions on appeals, unless the employee seeks review on 

the merits of the underlying personnel action or on a request for attorney fees. In these latter 

instances, the agency will continue to be the named respondent and will be defended by the 

Department of Justice. 

The MSPB Response 

As soon as the Whistleblower Protection Act was signed into law by President Bush, the 

MSPB Chairman formed a task force to make recommendations to the Board with respect to 

implementation of the Act. The task force was composed of both headquarters and regional 

office representatives. The principal challenge to the task force was to recommend procedures 

for the handling of the new individual right of action cases. 

The task force considered various proposals for processing the new cases and presented the 

Board with options. Based on the strong suggestion in the legislative history that the Congress 

expected these cases to be processed, insofar as possible, like other Board appeals, the Board 

opted to apply existing appellate procedures, supplemented by the special provisions 

established by the Act, to these cases. Thus, individual right of action cases filed by 

whistleblowers will be adjudicated initially by administrative judges in the regional offices and 

then, upon petition for review, will be considered by the full Board in Washington. The Board 

also determined that administrative judges in the regional offices should rule on stay requests 

in these cases. 
With this decision made, the Board's Office of the General Counsel drafted a new part of the 

Board's regulations—Part 1209—to implement the provisions of the Act applying to 

whistleblower appeals. It was determined that, from a structural standpoint, Part 1209 would 

deal only with the special provisions applying to whistleblower appeals. Other provisions in 

Part 1201 of the Board's regulations ("Practices and Procedures") that should apply to these 

cases, as well as to other Board appeals, would be incorporated by reference to that part. Such 

Part 1201 provisions include those relating to hearings, representation, subpoenas, evidence, 

ex parte communications, interlocutory appeals, interim relief, petitions for review, and 

petitions for enforcement of Board decisions. 

The Board determined that the Part 1209 regulations should govern not only the individual 

right of action cases, but also "otherwise appealable actions" where the appellant alleges that 

the action was based on his or her whistleblowing activities. The Part 1209 regulations 

address the time limits for filing both individual right of action appeals and otherwise 

appealable action appeals, the burden and degree of proof to be applied in whistleblower 

appeals, the waiver of the time limits for discovery, and the procedures for acting on stay 

requests. 

While the task force and the Office of the General Counsel focused on the provisions of the 

Whistleblower Protection Act applying to whistleblower appeals, the Board's Office of 

Management Analysis analyzed all of the other provisions of the Act and wrote new and 

revised regulations to implement those provisions. This involved extensive revision to Part 

1201, which contains the Board's practices and procedures for all appellate and original 

jurisdiction cases. 

Part 1201 was revised to incorporate implementing regulations for the Whistleblower 

Protection Act provisions relating to interim relief, attorney fees, subpoenas, protective orders, 

petitions for enforcement from aggrieved employees other than parties, Special Counsel intervention in appeals and petitions for review, Special Counsel stay requests, the burden and 

degree of proof for the Special Counsel in whistleblower cases, and judicial review of Special 

Counsel cases. In addition, a number of citation changes were made in other parts of the 

Board's regulations to reflect changes in section numbers of 5 U.S.C. Chapter 12 made by the 

Act. 

Both the revised Part 1201 and the new Part 1209 were approved by the Board in June 

1989 and were published as interim regulations in the Federal Register of July 6, 1989. The 

effective date was July 9, 1989, the effective date of the Act. The comment period for the 

interim regulations closed on September 5, 1989. At the end of the fiscal year, the Board was 

evaluating comments received from Federal departments and agencies, private attorneys, and 

individuals. Final regulations were expected to be published in Fiscal Year 1990. 

With the issuance of implementing regulations completed in July, the Board turned its 

attention to training its staff and conducting educational programs for agency representatives, 

employee representatives, and attorneys. At the National Administrative Judges Conference in 

August, a full-day program was presented to familiarize the Board's administrative judges with 

the Whistleblower Protection Act and the Board's implementing regulations. In addition to 

hearing speakers from headquarters and congressional staff, the administrative judges worked 

on sample case problems designed to bring out various provisions of the Act. By the time of the 

conference, standard provisions for both acknowledgment orders and final orders in 

whistleblower cases had been developed by regional office personnel, and these were 

distributed for comment. Regional personnel also developed a new appeal form to be used in 

whistleblower cases. 
Under the Act's provision permitting the Board to delegate subpoena and discovery 

authority to any employee, the Board delegated this authority to each of the regional directors. 

The regional directors, in turn, delegated the authority to many of the administrative judges. To 

assist the administrative judges in the exercise of the newly delegated authority, the staff of the 

Board's Administrative Law Judge prepared an extensive and detailed digest of laws, rules, 

regulations, and precedents relating to discovery. Each administrative judge was given a copy 

of this digest. 

At headquarters, personnel in the legal offices and the offices responsible for public 

information were also made familiar with the provisions of the Act. A new standard letter was 

prepared for use in responding to questions about the Board's jurisdiction under the Act. A 

new information publication, "Questions and Answers About Whistleblower Appeals," was 

prepared and was expected to be published early in FY 1990. 

In August 1989, Board attorneys presented a symposium on theWhistleblower Protection 

Act at Board headquarters. Approximately 175 individuals, including agency representatives, 

employee representatives, and private attorneys, attended. From June through September, 

representatives from Board headquarters made presentations on the Act at nine seminars and 

conferences in various parts of the country. These sessions were attended by approximately 

850 individuals. The Board's 11 regional offices conducted almost 30 outreach programs on 

the Act from May through September 1989. These programs were attended by well over 2,000 

individuals, including agency representatives, employee union representatives, and members 

of the private bar. The programs prior to July 1989 focused on significant provisions of the 

Whistleblower Protection Act. Those from July through the end of the fiscal year included 

discussions of the Board's implementing regulations, and copies of the regulations were 

distributed to all attendees. 

The Board established an Implementation Committee, chaired by the Deputy Director of the 

Office of Appeals Counsel, to oversee the Board's implementation of the Whistleblower 

Protection Act. Theprincipal charges to the committee were the manual collection of data from 

the Board's regional offices regarding case activity under the Act and the development of 

recommendations for modifying the automated case tracking system to provide information on 

whistleblower cases. The committee also met with representatives of the Office of Special 

Counsel to coordinate implementation activities. 

Impact On Cases In FY 1989 

As of the end of FY 1989, seven appeals had been filed with Board regional offices under 

the individual right of action, all of which were pending at the close of the fiscal year. No 

determination had been made as to whether the appeals met all of the requirements for filing 

under the individual right of action. 

By the end of FY 1989, the Board's regional offices had received four requests for stays of 

personnel actions, all of which were denied. The stay requests were denied because the 

personnel actions were initiated prior to the effective date of the Whistleblower Protection Act or 

because the parties did not establish a substantial likelihood that they would prevail on the 

merits of the case. 
Between the effective date of the Act and the end of the fiscal year, no new corrective or 

disciplinary actions on behalf of whistleblowers were filed with the Board by the Special 

Counsel. Information provided by the Special Counsel, however, indicated that seven 

complaints filed by whistleblowers in August and September were under investigation. No 

Special Counsel stay requests were granted under the revised procedures. 

Since actions initiated prior to the effective date of the Act were not affected by its 

provisions, no case activity was expected by the end of the fiscal year with respect to such 

provisions of the Act as interim relief for prevailing appellants and the award of attorney fees 

to prevailing appellants when the decision is based on a finding of a prohibited personnel 

practice. As cases begin to be affected by these provisions, information will be available from 

the Board's automated case tracking system. 
Adjudication: 

Appellate Jurisdiction 
Initial Appeals 

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

taken by Federal agencies to the Board. Certain other actions are appealable under OPM 

regulations. Appealable actions include adverse actions for misconduct (removals, 

suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or 

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

certain reduction-in-force actions, denials of restoration-to-duty or reemployment rights, and 

OPM determinations in employment suitability and retirement matters. Appeals must be filed 

in writing, within 20 days of the effective date of the action, with the regional office having 

geographic jurisdiction. (Where the notice of action does not set an effective date, the appeal 

must be filed within 25 days of the date of the notice.) 

Under the Whistleblower Protection Act, a broader range of personnel actions may result in 

an appeal to the Board if the appellant alleges that the action was taken because of his or her 

whistleblowing, and if the appellant has first filed a complaint with the Special Counsel and the 

Special Counsel has not sought corrective action from the Board. Under these circumstances, 

the appellant may appeal directly to the Board within 60 days after being provided notice from 

the Special Counsel that corrective action will not be sought. A direct appeal to the Board is 

also authorized if 120 days have passed since the filing of the complaint with the Special 

Counsel, and the Special Counsel has not advised the individual that the office will seek 

corrective action on his or her behalf. The appeal must be filed in writing with the Board 

regional office having geographic jurisdiction. 

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

raising any questions of timeliness or jurisdiction. The appeal is then assigned to an administrative 

judge for processing. The agency is required to provide its evidentiary file to the appellant 

and the administrative judge. The appellant and the agency then have the opportunity to 

present additiona information for the administrative judge's consideration. 

Once jurisdiction and timeliness have been established, the appellant has a right to a hearing on the merits. If a 

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

arguments to the administrative judge. Hearings are open to the public and fully recorded by a court 

reporter, with copies of the record available to the parties. 

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

within 120 days from the date the appeal wasfiled. In Fiscal Year 1989, 99.7 percent of all 

initial appeals were decided within 120 days. The regional offices averaged 76 days to issue 

decisions. 

In Fiscal Year 1989, the Board's regional offices issued a total of 7,842 decisions, of which 

6,953 were decisions on initial appeals and 889 were addendum case decisions, i.e., attorney 

fees, remands, and compliance (or enforcement). There were 2,048 settlements of initial 

appeals, or 49 percent of those initial appeals not dismissed for lack of jurisdiction or 

timeliness and closed during the fiscal year. The settlement rate was only slightly lower for 

addendum cases, 46 percent (309 settled out of 889). 
The following table shows the processing times of the initial appeals decided in the regional 

offices during Fiscal Year 1989. 

Case Processing Times In Regional Offices 

Decision Times 

(Days)

Number of Cases Percent of Cases Percent Total

0-30 477 6.9 6.9 

31-60 1,757 25.3 32.2 

61-90 2,081 29.9 62.1 

91-120 2,616 37.6 99.7 

120 + 22 .3 100.0 

6,953 

 
Initial Appeal by Type of Action 

Total number of initial appeals: 6,953 

Percentages do not equal 100% due to rounding 

Forty-nine percent of the initial appeals were adverse action cases. The remaining appeals 

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

actions, reductions-in-force, and other appealable actions. 

The above chart shows the breakdown of initial appeals by the type of action appealed. 

Hearings were held in 18 percent of all initial appeals. Fifty-five percent of appellants were 

represented by an attorney, union representative, or other person; the remaining 45 percent 

represented themselves. Of the 2,170 initial appeals that were adjudicated, 1,745 or 80 

percent affirmed the agency action. Decisions on the remaining appeals that were adjudicated 

included reversals, which overturned the agency action, and mitigations, which reduced or 

modified the penalty imposed by the agency. 
The chart below shows the break down by disposition of all initial appeals. 

Initial Appeals by Disposition 

Total number of initial appeals: 6,953 

Percentages do not equal 100% due to rounding 

The table to the right shows the disposition of appeals by the Federal executive department 

or agency taking the action appealed. 
Initial Appeals: Disposition by Agency 

Agency Number 

Decided

Percent

Dismissed 

Number 

Not 

Dismissed

Percent 

Settled

Number 

Adjudicated

Percent 

Affirmed

Percent 

Reversed

Percent 

Mitigated/ 

Other

OPM 1,742 24% 1,317 10% 1,186 84% 15% 1% 

Postal Service: 1,542 44% 867 72% 240 68% 18% 14% 

Navy 691 44% 388 67% 130 75% 18% 8% 

Army 590 41% 347 66% 119 74% 19% 7% 

VA 416 43% 238 70% 72 78% 17% 6% 

Air Force 371 41% 219 60% 88 75% 16% 9%

TVA 342 49% 175 42% 101 95% 5% 0

Treasury 222 56% 97 70% 29 79% 17% 3% 

Justice 185 56% 81 68% 26 77% 12% 12% 

Defense 135 39% 83 64% 30 70% 27% 3%

Agriculture 122 40% 73 81% 14 79% 7% 14% 

Transportation 101 40% 61 53% 29 86% 7% 7% 

Interior 91 46% 49 82% 9 89% 11% 0

HMS 88 35% 57 61% 22 68% 27% 5% 

GSA 62 47% 33 61% 13 62% 39% 0 

Labor 42 52% 20 55% 9 78% 11% 11%

Commerce 35 43% 20 55% 9 67% 22% 11%

HUD 35 40% 21 48% 11 91% 9% 0

Smithsonian 19 42% 11 46% 6 100% 0 0

FDIC 15 33% 10 60% 4 50% 25% 25%

SBA 11 73% 3 0 3 100% 0 0

EEOC 9 44% 5 80% 1 100% 0 0 

GPO 9 22% 7 57% 3 100% 0 0 

State 8 38% 5 100% 0 0 0 0 

Energy 7 43% 4 50% 2 0 100% 0 

USIA 5 40% 3 67% 1 100% 0 0

Education 5 40% 3 33% 2 50% 0 50%

NASA 5 60% 2 50% 1 100% 0 0

All Other 

Agencies 

48 64% 19 47% 10 90% 10% 0

Total 6,953 39% 4,218 49% 2,170 80% 16% 4% 

Note 1: The selected agencies shown include all Executive agencies with at least 5 cases. Executive agencies, for purposes of this table, include 

the U.S. Postal Service and other government entities where the Board has jurisdiction. 

Note 2: Because of the small number of cases involved, some percentages must be interpreted with caution. 

Note 3: The large number of initial appeals for the Office of Personnel Management reflect the special jurisdiction this agency has in 

retirement and suiaabliity issues. 
Addendum Cases 

In addition to the decisions on initial appeals issued in Fiscal Year 1989, the regional 

offices issued decisions in 889 addendum cases. These included requests for attorney fees, 

enforcement cases alleging that there has not been full compliance with a Board decision, 

and cases remanded to the regional offices. The following table shows the number of 

addendum cases by type. 

Addendum Cases 

Category of Appeal No. of Cases 

Attorney Fees 342 

Compliance (Enforcement) 396 

Remands 151 

Total 889 

Petitions For Review 

The Board may grant a petition for review when it is established that the initial decision of the administrative 

judge was based on an erroneous interpretation of statute or regulation, or that new and material evidence is 

available that, despite due diligence, was not available when the record was closed. Petitions for review are filed 

with the Office of the Clerk in Board headquarters by either party, or, under certain 

circumstances, by the Office of Personnel Management or the Office of Special Counsel as an 

intervenor. The Board also has the discretion to reopen and reconsider an initial decision on its 

own motion. 

The Board's decision on a petition for review constitutes final administrative action. Further 

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

in cases involving allegations of certain types of discrimination, with a U.S. District Court or 

the Equal Employment Opportunity Commission (EEOC). The Director of the Office of Personnel Management may intervene or petition the full Board for reconsideration of a final decision 

and may also seek judicial review of Board decisions that have a substantial impact on a civil 

service law, rule, regulation, or policy. 

The Board completed action on 1,281 petitions for review in Fiscal Year 1989, of which 

1,141 were filed to review initial decisions and the remaining 140 were addendum cases 

(attorney fees, enforcement and remands). The Board's decisions on 950 of the 1,141 petitions 

for review of an initial decision (83 percent) left the initial decision unchanged. During Fiscal 

Year 1989, 94 percent of final Board decisions reviewed by the United States Court of Appeals 

for the Federal Circuit were unchanged. 
Steps in Processing Initial Appeals and Petitions for Review 

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

personnel action 

MSPB Regional Office

Appeal received

Appeal acknowledged

Appeal entered in Case Tracking System 

Case file requested from agency

Appeal assigned to administrative judge

(If appropriate, show cause order issued re: jurisdiction or timeliness) 

1-3 days from receipt of appeal

Agency response and case file received

Discovery begins

Prehearing conference scheduled

Notice of hearing issued

(If show cause order issued, response received) 

10-25 days from receipt of appeal

Prehearing motions filed and rulings issued

Attempts to achieve settlement (various methods)

Discovery completed

Prehearing conference held (more than one may be held to facilitate 

settlement)

Witnesses identified

If no hearing, close of record set

10-60 days from receipt of appeal

Hearing held

Record closed

60-75 days from receipt of appeal

Initial Decision issued Within 120 days from receipt of appeal

Filing of Petition for Review (PFR) by Appellant or Agency Within 35 days of date of Initial Decision

Board Headquarters

PFR received

PFR acknowledged

PFR entered in Case Tracking System

Case file requested from Regional Office

(If appropriate, show cause order issued re: jurisdiction, timeliness, 

or deficiency of PFR)

1-3 days from receipt of PFR

Response to PFR filed Or Cross-PFR filed

Case file received

(If show 'cause order issued, response filed)

Within 25 days of date of service of PFR

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

Cross-PFR

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

EOT

Final Decision issued (Board time standard for issuance of Final 

Decisions is 110 days)

Filing of appeal with U.S. Court of Appeals for the Federal Circuit(or 

in discrimination cases, with the appropriate U.S. District Court or 

EEOC)

Within 30 days of the party's receipt of Board 

Final Decision
The chart on the previous page demonstrates the various steps in the processing of both 

initial appeals and petitions for review. 

Special Panel 

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

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

Employment Opportunity Commission in "mixed cases." These are cases that involve both 

a matter appealable to the Board and an issue of discrimination. The Special Panel 

consists of one Board Member designated by the MSPB Chairman, one EEOC 

Commissioner designated by the EEOC Chairman, and a third individual appointed by 

the President to serve as Chairman of the Special Panel. President Reagan appointed 

Barbara Mahone as Chairman of the Special Panel on October 18, 1985. 

During Fiscal Year 1989, there were no decisions issued by the Special Panel. 

William DuRoss III, Director of the Office of Appeals Counsel, and Member Bogley 
Significant Activities 

In addition to revising and republishing its entire regulations (see "Outreach Activities"), the 

Board revised and updated the standard orders and acknowledgments used by each of the 

regional offices. These revisions promote a uniform jurisprudence by ensuring adherence to 

current case law and to Board policies and procedures. At the same time, they further the 

Board's "plain English" initiative. 

The Board continued to ensure the quality of initial decisions by administrative judges in 

the regional offices through the quality review program established in Fiscal Year 1987. By the 

end of August 1989, all of the Board's administrative judges had been reviewed for the quality 

of their initial decisions. A new cycle of quality reviews will begin in FY 1990. 

In Fiscal Year 1989, the Board held its second National Administrative Judges Conference. 

This year's forum provided training in several aspects of case adjudication and decision 

making. Several outside speakers and speakers from various headquarters offices of the Board 

updated the administrative judges on current law and techniques. The Board's administrative 

judges have also attended the National Judicial College and the Legal Education Institute and 

have received training in alternative dispute resolution techniques. 

The Board's administrative judges have shown an impressive array of dispute resolution 

techniques, each with its own special characteristics and applications. The administrative 

judges facilitate exchanges between the parties, suggesting possible solutions and helping the 

parties reach a voluntary agreement. They make use of the prehearing conference stage of the 

appeals process to gain an ongoing involvement with the parties, thus facilitating settlement. 

Since these processes are voluntary, the parties surrender no rights if an agreement is not 

reached, and the case can proceed to adjudication. These techniques have resulted in 

increasingly higher settlement rates over the past several years. 

Five-Year Trend in Settlement Rates

Percent of initial appeals not dismissed
The Board continues to emphasize settlement procedures because, properly utilized, they 

ensure that the rights of the parties are protected and also provide the single most costeffective means of dispute resolution. Cost savings are achieved principally in salaries, travel 

expenses, and court reporting fees. The Board estimates that settlements in fiscal years 1987 

through 1989 have resulted in cost savings of approximately $3,200,000. 

The Board in FY 1989 completed several guidebooks and manuals designed to provide the 

administrative judges with increased guidance and assistance in adjudicating appeals. The 

Appeals Procedures Manual was totally revised and updated. In addition, several new 

guidebooks were written and distributed. These new materials included a hearings procedures 

guidebook, or "bench-book", to assist the administrative judges in conducting fair and impartial hearings in an expedient manner. A prehearing and settlement guidebook, authored by 

several adminis trative judges, was issued to provide guidance on assisting parties to resolve 

their disputes between themselves where possible. 

At headquarters, the Board has continued to ensure the quality of decisions through its 

issuance of detailed Opinions and Orders. These precedential decisions can be relied on by the 

administrative judges in subsequent appeals, and also serve to inform and guide Federal 

agencies, their employees, and the representatives of both, in taking and challenging 

appealable actions. The Board also concentrates on the resolution of cases involving "major 

issues," those that occur with some frequency in employee appeals. Their resolution in one or 

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

(See Appendix A for summaries of significant Board decisions issued on appeals during Fiscal Year 

1989.) 
Adjudication: 

Original Jurisdiction 

Cases that arise under the Board's original jurisdiction include 

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

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

have violated certain civil service laws, rules or regulations; 

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

prohibited personnel practices; 

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

Certain proposed disciplinary actions brought by agencies against administrative law 

judges; 

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

implementation of OPM regulations by an agency; and 

Informal hearings in cases involving proposed performance-based removals from the 

Senior Executive Service. 

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

headquarters. Employees against whom Hatch Act, other disciplinary action, or administrative 

law judge disciplinary action complaints are filed have 35 days to respond and are entitled to 

a hearing. These cases are assigned to the Board's Administrative Law Judge, who issues a 

recommended decision to the Board for final action. Special Counsel stay requests and 

requests for regulation review are decided by the Board. (An initial stay request may be 

granted by a single Board member.) In SES performance removal cases, the Administrative 

Law Judge holds an informal hearing, but there is no action by the Board. 

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

involving state or local employees in federally-funded positions) and other original jurisdiction 

cases are filed with the United States Court of Appeals for the Federal Circuit. In Hatch Act 

cases involving state or local employees in federally-funded positions, the employee may 

appeal the Board's decision to the appropriate U.S. district court. 

Two other types of cases, although technically within the Board's appellate jurisdiction, are

processed originally at Board headquarters (rather than in a regional office). These are petitions 

to review an arbitrator's award and appeals from the Board's own employees. Decisions in 

arbitration cases are issued by the Board. In the case of appeals from MSPB employees, the 

Administrative Law Judge hears the case and issues the initial decision. Unless a petition for 

review is filed and the Board considers the case, the decision of the Administrative Law Judge 

becomes the final decision.
Legislative Counsel Susan Williams 

Addendum cases (attorney fees, compliance, and 

remands) arising out of Board decisions in original 

jurisdiction cases are also included in the Board's 

original jurisdiction caseload. 

During Fiscal Year 1989, the Board issued decisions 

in 23 original jurisdiction cases. Of these, three were 

actions filed by the Special Counsel alleging Hatch Act 

violations, two were Special Counsel stay requests, and 

sixteen were proposed actions against administrative 

law judges. (With respect to the administrative law judge 

cases, the Board issued a decision in a consolidation of 

10 cases, a decision in a consolidation of 2 cases, and 

individual decisions in the other 4 cases.) Two original 

jurisdiction addendum cases were decided in Fiscal Year 

1989. 

The Board issued no decisions in Special Counsel 

corrective or disciplinary action cases involving prohibited personnel practices during the fiscal year. There 

were no requests for review of regulations. The 

Administrative Law Judge held two informal hearings in 

SES removal cases. 

The Board also decided 14 cases involving review of 

arbitrators' awards and dismissed for lack of jurisdiction an appeal of an agency grievance 

decision. 

The table on the next page shows the breakdown of 

original jurisdiction cases (other than addendum cases) 

by type of action and provides information on the 

disposition of these cases. (Decisions in SES cases are 

not included since these are not issued by the Board.) 

There was a marked increase in the number and 

range of cases recommended for settlement by the 

Board's Administrative Law Judge. Included were 

Special Counsel disciplinary actions, Hatch Act cases, 

and agency disciplinary actions against administrative 

law judges. 

The Administrative Law Judge issued a recommended 

decision in July 1989 in Special Counsel v. Raymond F. 

Gallagher, et al. That proceeding—the most extensive 

Hatch Act matter in the Board's 10- year history—involved 

a number of senior officials of the Niagara Frontier 

Transportation Authority. These state officials were 

found to have coerced, directly or indirectly, other 

agency employees to contribute to political causes. 

Their removal was recommended. At the close of the 

fiscal year, the case was pending before the Board. 

 In a proceeding involving the removal of a senior 

DeputyGeneralCounselMaryJennings 
executive of the United States Customs Service and subsequent placement in another civil 

service position for performance shortcomings, the Administrative Law Judge found there was 

evidence of reprisal for whistleblowing. Because of the nature of the proceeding, however, the 

Board lacked any enforcement authority, and the Administrative Law Judge urged Customs to 

undertake corrective action. In another SES matter, the Equal Employment Opportunity 

Commission reversed its action in removing a member of its SES corps after she had filed for 

relief, also alleging retaliation for protected disclosures. 

Number and Disposition Of Original 

Jurisdiction Cases 

FY 1989 

Type of Case No. of Cases Disposition

Special Counsel 

Disciplinary Actions 

(other than Hatch Act)

0

Hatch Act Violations 3 Violation found in 3 cases. 

Removal ordered in 2 cases. 

Debarment ordered in 1.

Special Counsel 

Corrective Actions

0

Special Counsel 

Stay Requests

2 Stays granted.

Actions against

Administrative Law Judges

16 Removal authorized in 2 cases. 

Suspension authorized in 

consolidation of 2 cases.

Settlement in consolidation of

10 cases. 2 cases dismissed for 

lack of jurisdiction.

Review of Regulations 0

Total 21

As the fiscal year drew to a close, three administrative law judges filed an unprecedented 

action against their employing agency—the Social Security Administration—alleging that the 

agency has constructively penalized them by interfering with their judicial independence 

through a series of administrative actions, essentially relating to reduction in staffing and paring 

the territorial coverage of their office. The judges suggest these actions are ploys to require them 

to issue more decisions. 

Predicated upon a Board policy decision that all appeals involving classified information 

having national security implications would be handled by the Administrative Law Judge, all 

staff members of the office underwent background investigations with a view toward obtaining 

suitable clearances for handling these sensitive matters. 

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

during Fiscal Year 1989.)
Administrative Law Judge Edward Reidy and Secretary Betty

Cannon 
Litigation 

During Fiscal Year 1989, the Board monitored over 600 cases involving appeals from 

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

United States Court of Appeals for the Federal Circuit. The agency is the named respondent 

and is defended by the Department of Justice. Board activities in connection with monitored 

litigation include responding to inquiries, assisting in the preparation of briefs, preparing a 

case summary and chronology, preparing a legal evaluation, and analyzing the published 

court decision. 

Under the Whistleblower Protection Act, the Board is granted litigation authority to defend 

its appellate decisions except where the merits of the underlying personnel decision or a 

request for attorney fees is at issue. While this provision had little impact on the Board's 

litigation activities in FY 1989, the active litigation caseload will increase in the future as 

actions commenced after the effective date of the Whistleblower Protection Act reach the judicial review stage. 

The most complex litigation in which the Board is named as the respondent arises from 

civil actions appealing decisions issued under the Board's original jurisdiction authority. 

Cases where the Board is the respondent usually involve complex issues such as the extent of 

the Special Counsel's jurisdiction and Hatch Act violations. Other active litigation includes 

discrimination cases filed in the various Federal district courts, when the Board is a 

defendant; cases in which the Board intervenes, such as OPM petitions for review in the 

Federal Circuit; and administrative litigation arising out of appeals to MSPB filed by Board 

employees. The Board was the respondent or intervenor in 32 such cases in FY 1989. 

(See Appendix C for summaries of the significant litigation activities of the Board during 

Fiscal Year 1989.)
Reviews Of 

OPM Significant Actions. And 

Merit Systems Studies 

The Civil Service Reform Act assigned the Board, in addition to its adjudicatory functions, the 

important responsibilities of reviewing the significant actions of the Office of Personnel 

Management and conducting studies of the civil service and other merit systems. The Act included a requirement that the Board report annually to the President and the Congress on OPM 

significant actions. Aside from that requirement, the Board's legislative mandate with respect to 

its OPM oversight and studies functions is broad in scope and gives the Board a great deal of 

discretion in deciding what to review and how to review it. 

Typically, the Board solicits potential study topics from a wide variety of sources in the 

development of its research agenda. The Board's studies, usually governmentwide in scope, 

are conducted through a variety of research methods, including mail and telephone surveys, 

on-site systems reviews, written interrogatories, formal discussions with subject matter 

experts, computer-based data analysis, and reviews of secondary source material. 

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

Congress, but are also reviewed by a large secondary audience of Federal agency officials, 

employee and public interest groups, labor unions, academicians, and other individuals and 

organizations with an interest in public personnel administration. 

During Fiscal Year 1989, the Board released four major reports or important civil service issues 

and completed work on four others to be released early in Fiscal Year 1990. The reports 

released in FY 1989 were: 

U.S. Office of Personnel Management and the Merit System: A retrospective 

Assessment - A review of the results achieved by OPM in the 10 years since 

enactment of the CSRA; 

First-Line Supervisory Selection in the Federal Government - A study of the methods 

for selection of first-line supervisors and the effectiveness of those methods; 

The Tennessee Valley Authority and the Merit Principles - The Board's first study of a 

non-Title 5 merit system; and 

Who Is Leaving the Federal Government?: An Analysis of Employee Turnover - An 

analysis of the subject, derived from data in the OPM Central Personnel Data File. 

(See Appendix D for summaries of these reports.) 
The reports to be issued early in FY 1990 were: 

The Senior Executive Service: Views of Former Federal Executives - A survey 

of former SES members to determine why they left and their suggestions for improvements to the SES; 

Delegation and Decentralization: Personnel Management Simplification Efforts in 

the Federal Government -A study of OPM and agency initiatives to free managers 

from overly prescriptive personnel rules; 

OPM's Classification and Qualification Systems: A Renewed Emphasis, A 

Changing Perspective - An analysis of OPM's program of publishing standards 

for determining job classifications and individual qualifications; and 

Federal Personnel Management Since Civil Service Reform: A Survey of Federal 

Personnel Officials - A survey of Federal personnel specialists to learn their views on 

whether the expectations of the Federal personnel management system envisioned by 

CSRA have been realized. 

Other research underway during Fiscal Year 1989 included: a survey of departing Federal 

employees to determine why they are leaving Government; a study of the merit system for 

employees of the Department of Veterans Affairs who are excepted under Title 38; a study of the 

effects of the rank-in-person concept in the SES; an assessment of the skill level of the current 

work force in selected occupations; and the annual review of the significant actions of OPM. 

The Board's studies and reports provide important insights and information on the civil 

service for public policy decision makers at all levels. The increasing impact of the Board's 

studies is apparent from the citing of findings from the studies in national forums such as the 

National Commission on the Public Service (Volcker Commission). The Board's findings have also 

been cited in testimony at congressional hearings by leaders in Government and academia. Increased attention to the Board's studies in the media is further evidence that the Board has 

become a major resource in the area of Federal personnel management. 

Recommendations in the Board's reports often produce concrete results in affected agencies. 

For example, during Fiscal Year 1989, agencies conducted training of employees and 

supervisors in issues related to sexual harassment as a direct result of the Board's 1988 report, 

"Sexual Harassment in the Federal Government." The Office of Personnel Management has 

initiated several actions in recent years in response to Board recommendations, and the Board's 

FY 1989 study of the Tennessee Valley Authority produced positive reactions in that agency. 

Senior Technical Assistant Joyce Campbell and Technical Assistant Gwen Hargrove 
During Fiscal Year 1989, the Board not only responded to thousands of requests for copies of 

its reports, but also responded to contacts from other researchers, agency officials, public interest 

groups, and members of the academic community. Board staff are increasingly invited to speak 

at conferences sponsored by organizations with an interest in Federal personnel issues. 

In addition to pursuing its research 

agenda, the Board has assigned a 

high priority to studying the 

relative quality of the Federal work 

force. This topic is essential in the 

debate over whether the Federal 

Government is failing to attract the 

best and the brightest employees. 

In Fiscal Year 1989, the Board and 

OPM co-sponsored a conference on 

work force quality assessment. The 

conference brought together distinguished leaders in the field to begin 

the difficult task of measuring the 

quality of Federal employees. The 

proceedings of the conference were 

published as "A Report on the Conference on Workforce Quality Assessment." Following the conference, the Board and OPM entered 

into a formal agreement to jointly 

sponsor the Advisory Committee on 

Federal Workforce Quality Assessment to carry on the work started at 

the conference. 

Evangeline Swift, 

Director of the Office 

of Policy and 

Evaluation
Outreach Activities 

The Board continued in Fiscal Year 1989 to enhance its reputation as a fair and impartial 

adjudicator through its outreach programs to major constituencies. The Board members and 

headquarters staff addressed groups, participated in seminars and conferences, and conducted 

training programs in order to further an understanding of the Board's policies and procedures 

and of important issues in Federal personnel law. The regional directors and administrative 

judges delivered more than 100 speeches at meetings and conferences attended by thousands of 

participants. 

A delegation from the Board participated in the Annual Judicial Conference of the U.S. Court of 

Appeals for the Federal Circuit. Board attorneys also spoke at various meetings of the Federal Bar 

Association, National League of Postmasters, National Association of Postmasters of the United 

States, National Federation of Federal Employees, OPM, NASA, and various Defense Department 

units. Topics included MSPB practices and procedures, recent significant decisions of the Board 

and the courts, Federal employee rights and benefits, disability retirement issues, discrimination 

cases involving drug and alcohol abuse, AIDS, and recent developments in Chapter 43 

(performance appraisal) law. 

Management 

Analyst 

Bentley 

Roberts and 

Paul 

Mahoney, 

Director of 

the Office of 

Management 

Analysis
The Board completed the rewrite of its regulations in "plain English," a project that was 

extended in spring 1989 to incorporate substantive changes to implement the Whistleblower 

Protection Act of 1989. The "plain English" revisions make the Board's regulations more 

understandable to appellants, particularly those who represent themselves, and to practitioners 

before the Board. 

The Board conducted a survey to 

determine whether it was satisfying the 

requirement under 5 U.S.C. 552 (a)(2)(A) to 

make its final orders and opinions available 

to the public. In the survey questionnaire, 

the Board asked a series of questions to 

determine the accessibility of its decisions, 

including the frequency of use by the 

responding parties, the preferred source, 

and whether the current method of citing 

past cases was sufficient. The survey was 

published in the Federal Register and was also 

sent directly to persons known to practice 

before the Board. Almost 84 percent said 

that the current method of citation was 

sufficient. 

The Board also launched a new series of 

public information publications with the 

issuance of "An Introduction to the MSPB" 

in September 1989. This publication provides a general overview of the Board's 

appellate, original jurisdiction, and studies 

functions, and is intended for the general 

reader with an interest in the Board's 

activities. Work was completed during the 

fiscal year on two publications intended primarily for Federal employees, "Questions & Answers 

About Appeals" and "Questions & Answers About Whistleblower Appeals." Both were to be 

published early in FY 1990 in both English and Spanish language editions. Also planned for 

early FY 1990 publication was a reprint of the special section from the Board's FY 1988 Annual 

Report, "A Ten Year Retrospective of the Merit Systems Protection Board." The retrospective 

publication concentrates on the development of the Board's case law in the first decade after 

enactment of the CSRA. 

Secretary Sylvia Moore, Office of the Clerk

In August 1989, the Board sponsored a symposium on the Whistleblower Protection Act, 

focused on recent revisions to the Board's regulations to implement the Act. This was the latest 

in a series of symposia, open to the public, on topical legal issues. In conjunction with the SES 

Candidate Development Program, the Clerk of the Board provided quarterly seminars on 

"Handling Employee Appeals." In one seminar, the class made a field trip to an MSPB 

hearing and then held a follow-up discussion. 
The Board's studies staff also responded to numerous requests to serve as speakers and 

participants in professional conferences and other public forums. Formal presentations were 

made at the annual meeting of the International Personnel Management Association's 

Assessment Council, the Personnel Training Council, the Mid-Atlantic Personnel Assessment 

Consortium, the annual conference of the Classification and Compensation Society, the 

annual conference of the American Society for Public Administration, and various 

conferences sponsored by Federal agencies. Members of the studies staff also served as guest 

speakers and lecturers on public personnel policy and issues at Syracuse University, the 

University of Southern California, James Madison University, and the Legal Education 

Institute. 

The Board's Deputy Executive Director served on the Executive Committee of the Small 

Agency Council. The Inspector General represented the Board on the Coordinating 

Conference of the President's Council on Integrity and Efficiency, the Association of Directors 

of Federal Investigation, the Association of Federal Investigators, and the Institute of Internal 

Auditors. The Inspector General was also a featured speaker at the conference for new 

assistant inspectors general for investigation who were selected under the Inspector General 

Act Amendments of 1988. 

In April 1989, the Chairman and Vice Chairman represented the United States at the 

Sixteenth International Symposium on Public Personnel Administration in Rome, Italy. The 

major discussion topics were human resource planning and centralization vs. 

decentralization. The symposium provided an opportunity for representatives from 13 

countries, the Council of the European Communities, the United Nations Development 

Programme, and the International Labor Organization to exchange information and views 

about their public personnel management practices. 

The Board issued its annual report of case decisions during FY 1988 to provide detailed 

information on appeals decisions issued by the Board and its administrative judges, 

including information on initial appeals, petitions for review, and addendum cases (attorney 

fees, enforcement, and remands). In addition to total numbers, various breakdowns were 

provided by type of appeal, agency, disposition, and case processing time. Fiscal Year 1988 

appeals decisions were placed in the context of decisions issued during the four previous 

fiscal years (FY 1984-1987) in order to develop a 5-year trend analysis. The Fiscal Year 1988 

report also reviewed Board decisions in cases arising under its original jurisdiction, cases 

that the Board had reopened on its own motion, cases in which OPM had requested 

reconsideration, and discrimination cases that were appealed to the Equal Employment 

Opportunity Commission. 

A continuing activity of particular interest is the Board's international visitors program. 

Conducted at Board headquarters by the Chairman and senior staff, this program is 

responsive to requests from foreign visitors who wish to visit the Board in order to learn 

about merit system principles and the Board's practices and procedures. During Fiscal Year 

1989, the Board made presentations to over 70 visitors, including governors, agency heads, 

inspectors general and attorneys from Australia, China, India, Indonesia, Japan, Kenya, the 

Philippines, and Uganda. 
Administration, 

Finance, And 

Human Resources 

Administration 

During Fiscal Year 1989, the Board continued to enhance management efficiency and effectiveness through its 

focus on management improvement objectives. To support the strategic planning process, regional and headquarters 

office directors developed 141 action plans 

for accomplishing improved operations 

under one of the four major 

improvement objectives. These 

plans were tracked throughout the 

fiscal year and resulted in 

significant systems and program 

improvements. 

The Management Conference in 

November 1988 focused on "Better 

Service through Quality 

Management." The Board 

contracted with the Federal Quality 

Institute to train all managers in 

Total Quality Management 

concepts and systems. 

Secretary Alicia Pickett and 

Darrell Netherton, Director 

of the Office of Administration 
 A major achievement was the publication of the first comprehensive 5-Year Information 

Resources Management Plan for the Board. This plan details the projects, personnel 

resources, and procurements necessary over the next five years to support the Board's mission 

and improvement objectives. The Board initiated a major upgrade to the headquarters 

minicomputer and application systems to establish the hardware and software base necessary 

to support office automation needs. This procurement is expected to reduce the yearly 

maintenance costs for the Board's headquarters b) more than a third, to support more 

applications, and to improve response time to users. 

During the fiscal year, the 

Board also continued the 

migration to an IBM-AT 

compatible PC environment. To 

assist users, the Board published 

an "End User Computing 

Management Guide" that established the policy and procedures 

to be followed by end users to 

acquire, use, and maintain 

personal computers. It also 

established standards for PC hardware and software, published the "Word Processing Handbook," and formed the Microcomputer Support Group to better support the training, technical 

assistance, and PC application development needs of Board users. The Board also completed 

the requirements analysis and system design for the new Case Management System (formerly 

the Case Tracking System). 

Robert Taylor, Clerk of the Board

The Board completed its six computer security plans and submitted them to the National 

Institute of Standards and Technology by January 8, 1989, as required by the Computer 

Security Act of 1987. The Board, therefore, was one of only 59 percent of all Federal agencies 

to comply with this requirement. The Board also published the Information Technology 

Security Manual for its employees and conducted a computer security training program 

throughout the Board. 
The Board acquired desktop publishing (DTP) capability and was thus able to perform 

design and layout of all publications in-house during the fiscal year. The Board's FY 1988 

Annual Report, its FY 1988 report on case decisions, all of the reports of merit system studies 

and OPM oversight, and various information publications were produced with DTP software, 

and camera-ready copy was then provided to the Government Printing Office for printing. 

This capability has enabled the Board to reduce costs associated with its publications and to 

produce them in a more timely fashion, and to exercise greater control over the appearance of 

the publications. 

The Board conducted Administrative Program and Management Reviews, in accordance 

with the requirements of OMB Circular No. A123, of five of its offices during FY 1989: the 

Financial and Administrative Management Division, Equal Employment Opportunity Division, 

Personnel Division, and the Denver and New York regional offices. These reviews cover both 

administrative management of the office reviewed plus program management if the office has 

delegated responsibility for a program. The reports of these reviews have proven extremely 

beneficial in improving the quality of administrative and program functions. A 5-year cycle 

has been established to review all headquarters and regional offices. 

The MSPB Library was automated to provide for resource sharing among libraries, 

immediate access to an extensive bibliographic data base, and on-line cataloguing and interlibrary loans with more than half of the libraries in the Washington, DC area. Subscription to 

this service eliminated the need for nearly all manual cataloguing and provided access to the 

entire catalogue of the Library of Congress and most major libraries in the country. A 

comprehensive information security program for the Board was established, the Records 

Management Program was revised and updated, and the Assignment and Correspondence 

Tracking System (ACTS) was refined to improve monitoring of case-related correspondence. 

The Board and the U.S. Court of Appeals for the Federal Circuit signed a Memorandum of 

Understanding that allows the court limited access to the Board's case tracking system. This 

access allows the court to verify that a matter before it is not also pending with the Board. 

A comprehensive space plan was developed for headquarters that allows the Board to use 

its available space in the most efficient manner. Space renovations, using systems 

furnishings, are projected to save the Board several thousand dollars. The Board issued a 

Travel Manual and Travel Guide to assist all employees who travel on Board business, and 

held seminars to assist Board employees in such matters as procurement integrity and credit 

card purchases. 
Inspector General Paul 

Riegert 

The Office of Inspector General reviewed and reported on the physical security conditions 

of all headquarters and regional offices and conducted audits of all 12 imprest funds 

maintained by the Board. The office also substantially completed evaluations of the Board's 

implementation of the Computer Security Act of 1987, the administrative and program 

management reviews of headquarters and regional operations, and the administrative judge 

quality review program. 

In a reorganization of headquarters offices, the Board established the new position of Deputy 

Executive Director to assist the Executive Director in carrying out the Board's program and 

management responsibilities. All headquarters offices, except the Office of the Inspector 

General, now report to the Deputy Executive Director. The former Office of Legislative Counsel 

was abolished and its functions were distributed among other Board offices. In a realignment 

affecting regional operations, the Office of Regional Operations was established to provide 

direction to the regional offices. 
Financial Statement 

The obligations of the Merit Systems Protection Board for Fiscal Year 1989 (October 1, 1988, 

through September 30, 1989) are shown below: 

1989 Actual Obligations 

Direct obligations: (Thousands of dollars) 

Personnel compensation 

Full-time permanent 11,201 

Other than full-time permanent 957 

Other personnel compensation 292

Subtotal 12,450

Personnel benefits 1,670 

Travel and transportation of persons 474 

Transportation of things 116 

Rental payment to GSA 1,673 

Rental payments to others 55 

Communications, utilities, and 

miscellaneous charges 

558 

Printing and reproduction 166 

Other services 1,325 

Supplies and materials 254 

Equipment 1,670 

Subtotal 20,411

Reimbursable obligations 1,466 

Total obligations 21,877

Purchasing Agent Veronica Kelley, 

Budget and Procurement Chief 

Douglas Wade, and Thomas Lanphear, 

Deputy Director of the Office of 

Appeals Counsel
Human Resources 

The full time equivalent employment for the Board in FY 1989 was 301. 

The representation of women and minorities in the Board's work force continues to be 

impressive. Women and minorities are not clustered in lower grades, and the Board's 

representation of these groups in professional occupations is high. The table to the right 

shows the percentages of female and minority attorneys, as well as the percentage 

representation of these groups in the Board's work force as a whole. 

Targeted recruitment has been conducted to increase the representation of minorities and 

women in the Board's work force. Recruiters visited law schools at universities in the 

Washington, DC area, including American University, Howard University, Catholic University, 

and George Mason University, and participated in a job consortium at George Washington 

University. Representatives also attended conventions held by such organizations as the 

National Black Law Students Association and the Hispanic Bar Association. 

Board representatives made recruiting trips to the University of Florida and Stetson 

University Law Schools in conjunction with their attendance at the Federal Dispute Resolution 

Conference sponsored by EEOC in Tampa, Florida. A recruiting trip to St. Mary's University 

Law School was conducted in conjunction with attendance at a conference on the recruitment 

of Hispanics. Board representatives also participated in the Texas in Washington Recruitment 

Program by interviewing applicants from the five major law schools in Texas. In New York City, 

on-campus recruiting was conducted at Hofstra, Fordham, St. John's, and New York law 

schools. 

MSPB Employment By Race, National Origin, And Sex 

Data as of September 30,1989 

Attorneys 

No. in Attorney 

Workforce

Percent of 

Attorney 

Workforce

Male 83 61.5

Female 52 38.5

Total 135 100.0

Minority * 29 21.5

Majority 106 78.5

Total 135 100.0

M SPB (Entire Agency)

Male 134 42.8

Female 179 57.2

Total 313 100.0

Minority * 119 38.0

Majority 194 62.0

Total 313 100.0

* Excluding White/Female 
During the fiscal year, Board personnel developed a close working relationship with the 

Hispanic Association of Colleges and Universities. This effort was undertaken to improve the 

Board's ability to locate and recruit Hispanic law school graduates as well as undergraduates in 

other disciplines. The Board is currently assisting the association in developing a seminar 

targeted at increasing the representation of Hispanics in the Federal work force. 

As a result of these recruiting activities, the number of women and minority applicants for 

Board attorney positions has increased, and the Board has increased its representation of 

minorities and women. 

A major achievement in human resources 

management during the fiscal year was the 

implementation of the Board's new Performance 

Management Plan (PMP). Training for implementation of 

the PMP was presented to all supervisors in November 

1988, and new position descriptions and elements and 

standards were completed for all employees in January 

1989. New performance rating cycles were implemented, 

with all General Schedule and Prevailing Rate employees 

first rated for the period February 1-May 2, 1989. The 

new performance awards program was implemented 

shortly after the submission of the ratings. The Performance Appraisal Advisory Committee, established to 

evaluate the GS rating plan and awards program, reviewed and 

reported on the short performance cycle. A second report was to 

follow after the second GS rating cycle ended December 31, 1989. 

Since the performance cycles for Senior Executive Service and Performance Management and Recognition System employees coincide 

with the fiscal year, their first ratings under the new plan were to be 

submitted in October 1989. 

The Board implemented OPM personnel security 

requirements as set forth in the Federal Personnel Manual. 

Using the new OPM criteria, position sensitivity was 

assigned to all positions at the Board. Investigations and 

periodic reinvestigations have been initiated as necessary to bring the Board's Personnel Security 

Program into compliance with the latest requirements. The goal of the program is to ensure that 

the employment and continued employment of each Board employee is consistent with the 

interests of national security and computer security. 

Chairman Levinson and Evangeline Swift

At the annual Honor Awards Ceremony in November 1988, the Chairman presented the first 

Theodore Roosevelt Award to Evangeline W. Swift, Director, Office of Policy and Evaluation. The 

Chairman established this award late in FY 1988 to honor the Board employee who has 

demonstrated distinguished performance or leadership in support of the Board's mission to 

protec Federal merit systems through its adjudicatory and studies functions. At this ceremony, 

21 Board employees were honored with the newly established Chairman's Awards for Excellence. 
In terms of both the number of awards per 100 employees and the average dollar amount of 

awards, the Board exceeded governmentwide figures for Special Act or Service awards, 

performance awards for both GS and GM employees, and Quality Step Increases in FY 1988, the 

latest year for which governmentwide figures are available. The Board's figures for Special Act 

or Service awards and for Quality Step Increases were substantially higher than the 

governmentwide averages.

R.J. Payne, Regional Director of the Board's Atlanta Regional Office, was selected by 

President Bush to receive the Presidential Rank Award of Meritorious Executive. Mr. Payne was 

recognized for his innovations in adjudication techniques and for his superior management of 

two of the largest MSPB regional offices. Prior to his assignment to Atlanta, he was Regional 

Director of the Chicago Regional Office. 

Atlanta

Regional

Director

R.J. Payne,

OPM

Director

Constance

Newman,

and

Chairman

Levinson
Appendix A 

Significant Board 

Decisions 

Appellate Jurisdiction Cases 

Significant appellate jurisdiction cases decided by the Board during Fiscal Year 1989 included the 

following: 

Adverse Actions 

Warnock v. Department of Justice, DC07528710307 (October 19, 1988) 

The Board found that to prove a falsification charge, an agency is not required to establish that it relied on 

the misrepresentation. Proof of intentional falsification with intent to defraud the Government is sufficient 

because it casts doubt on the appellant's trustworthiness and warrants disciplinary action. 

Adverse Actions -Prohibited Personnel Practices 

Wright v. Federal Aviation Administration, BN07528610058-1 (April 13, 1989) 

The Board set forth an analytical framework for determining whether agencies violate 5 U.S.C. 2301(b)(7). 

Itthe agency failed to provide him with at least the minimum training reasonably calculated to give him the 

skills and knowledge required to do the job, that additional or different training would have given him those 

skills, and that such training could have been provided in a cost-effective manner considering the agency's 

mission and its need to apportion its limited resources among its numerous programs and objectives. 

Attorney Fees 

Vann v. Department of the Navy, PH043285A0564 (October 14, 1988) 

The Board held that the criteria of Allen v. U.S. Postal Service, without modification, apply to cases settled 

prior to a decision on the merits, and that an appellant must prove his entitlement to fees on the basis of the 

record at the time the appeal was dismissed, as supplemented during the fees proceeding. 
Crumbaker v. Department of Labor, SE075280A0084 (March 6, 1989) 

Citing the Supreme Court's decision in Delaware Valley, the Board held that the lodestar figure in a 

case may not be enhanced based on the risk that the attorney would not be compensated in a 

particular case. The Board further held that the figure could be enhanced if the attorney could establish 

that, without an adjustment for risk, the prevailing party would have faced substantial difficulties finding 

counsel in the local or other relevant market. The Board also found that the relevant market is where the 

appellant lives and the case arose, rather than where the attorney practices. Only if there are "compelling 

reasons" why no one in that jurisdiction was available and it was necessary to get particular counsel from 

a different area will the location where counsel practices be considered the relevant market. The Board 

further found that the appellant need not show that other attorneys refused his case at a lower rate in order 

to qualify for a multiplier. The Board held that Delaware Valley requires only the minimum enhancement 

necessary to attract competent counsel and that the enhancement is applied only to the fees charged after 

the appellant and counsel enter into the contingency contract. 

Board Procedures 

Greene v. Department of Health and Human Services, PH07528510745 (August 24, 1989) 

The Board found that it lacks the authority to grant a motion for summary judgment. It further held 

that where an appellant files a motion for summary judgment, the appellant should be informed that the 

motion will be considered a request for adjudication of all issues on the record. Further, in order to 

avoid piecemeal adjudication, where the motion is conditional or does not address the entire case, the 

appellant should be required to choose between having the entire case decided on the basis of the record 

or having a hearing on all issues. 

Collateral Estoppel 

Combs v. U.S. Postal Service, SF07528810486 

(July 13, 1989) 

The Board found that a state unemployment compensation decision was not entitled to collateral estoppel 

effect because the determination in that case was that the appellant did not commit misconduct under the 

California code, which defines insubordination in a different way than does the Board. Further, unemployment 

compensation decisions are not binding on the Board. 

Discrimination - Age 

Decker v. Department of Health and Human Services, DE03518710274 

(March 14, 1989) 

The Board found that the appellants' allegations of age discrimination must be analyzed as disparate 

treatment claims rather than claims based on disparate impact because the contention was that the agency's 

actions were personal to them and not that they derived from policies affecting all class members. The Board 

found that in order to establish a prima facie case of age discrimination, the appellants must show (1) 

coverage under the Age Discrimination in Employment Act, (2) an unfavorable employment action, and (3) that 

their age was the determinative factor in the agency's challenged action. All credible evidence, in sum, must 

support the inference of discrimination with substantial or reasonable probability, not just a possibility. 
Discrimination - Handicap (Causation) 

Seibert v. Department of Treasury, PH07528810122 (June 21, 1989) 

The Board found that to prove causation, an appellant is only required to show that he was so impaired at 

the time of the misconduct that he lacked control over his actions. 

Jurisdiction 

Lewis v. U.S. Postal Service, PH07528710262 (December 15, 1988) 

The Board found that the test for determining whether a resignation is involuntary on the basis of a lack of 

mental capacity is whether, at the time of the resignation, the employee is capable of making a rational decision 

to resign. 

Benifield v. U.S. Postal Service, CH07528810478 (February 28, 1989) 

The Postal Employee Appeal Rights Act of 1987 provides a right of appeal to Postal Service employes 

engaged in "personnel work in other than a purely nonconfidential clerical capacity." Since Title 5 does not 

apply to the Postal Service absent a specific provision in the Postal Reorganization Act, the Board found, 

applying National Labor Relations Board definitions to terms, that only those employees who assist and act in a 

confidential capacity to persons who formulate, determine, and effectuate management policies in the field of 

laborrelations are entitled to appeal rights before the Board. The Board held that mere access to personnel 

information is insufficient as a basis for finding confidential status. 

Wik v. Small Business Administration, AT07528810529 (June 16, 1989) 

The Board found that it has jurisdiction over appeals from on-call employees to the same extent that it has 

jurisdiction over appeals from seasonal employees. 

Performance-Based Actions 

Aborador v. Department of Air Force, SF04328710916 (October 19, 1988) 

The agency placed the appellant on a performance improvement plan (PIP). One month later, and for the remainder of the 

PIP, the appellant was assigned a new supervisor. The appellant received no assistance from his first supervisor, although he 

did receive assistance from the second. The Board found that the appellant had been denied a reasonable 

opportunity to improve because his error rate during the early weeks of the PIP, while he was still under his 

first supervisor, exceeded the percentage requirement for the entire PIP. 

DeSousa v. AID and OPM, DC04328610530 (October 26, 1988) 

The Board found that the harmful error test is applicable in the context of Chapter 43 actions. Although it recognized that in 

certain circumstances a harmful error analysis might be inapplicable, the Board found that such was not the case here, since the agency's 

failure was procedural in nature and did not establish that the agency failed to comply with the substantive requirements of Chapter 43. 
Mabrouk v. Department of the Army, BN04328810094 (March 23, 1989) 

The Board found that unacceptable performance in only one critical element is sufficient to warrant removal, 

and the administrative judge correctly found that the appellant performed unacceptably in the first critical 

element at issue. 

Bronfman v. General Services Administration, SL04328710306 (April 3, 1989) 

The Board found that the appellant's performance standards were invalid. Although the standards were 

specific in setting forth how the appellant was expected to do the job, they did not set forth a level of 

performance the appellant was required to meet in order to maintain acceptable performance and, therefore, did 

not permit accurate evaluation of performance on the basis of objective criteria. The Board further found that 

the fact that a standard could be written more objectively does not, alone, make the standard invalid. 

Restoration to Duty 

Brumley v. Department of Transportation, SE03538810332 (February 14, 1989) 

The appellant received OWCP payments from 1984 until 1985, at which time he elected to retire on disability. He later 

requested priority consideration for restoration to duty, and the agency denied the request. The Board found 

that the appellant's eligibility for restoration was not terminated by his decision to accept a disability retirement 

in lieu of the OWCP benefits to which he had been found entitled. 

Retirement-related Issues 

Hollander v. Office of Personnel Management, DC08318810038 (December 19, 1988) 

The appellant argued that under the Spouse Equity Act, she was entitled to a survivor annuity because her 

former husband was "eligible to retire" on a disability annuity. The Board found that, because "eligible" 

means "fit to be chosen," the term should not be limited to mean one who is eligible to retire on the basis of age 

and years of service, and the appellant should be afforded an opportunity to show that the decedent met the 

requirements for a disability retirement. 

Spaulding v. Office of Personnel Management, SF08318810505 (March 2, 1989) 

The Board found that under 5 C.F.R. 831.2203(e), an election of an alternative form of annuity must be made in writing and 

be received by OPM on or before the date of final adjudication, and it cannot be revoked after the date on which 

OPM authorizes payment of the lump sum. The Board further found that it was not unreasonable for OPM to 

require that the revocation be made in writing. Thus, OPM's construction of the regulation was entitled to 

deference. 

Hundley v. Office of Personnel Management, PH08318810435 (March 28, 1989) 

The Board found that a former spouse such as the appellant has standing to challenge the validity of a 

second marriage where the second spouse is receiving a survivor annuity. 
Hyde v. Office of Personnel Management, SF08318710628 (April 5, 1989) 

The Board found that it was without authority to address the issue of the validity of the marriage in this 

appeal because OPM had not issued a reconsideration decision on that matter, and because it cannot adjudicate 

the validity of, or declare void, a civil marriage. The validity must be determined by the appropriate local 

judicial body. 

Clark v. Office of Personnel Management, NY08318810183 (May 22, 1989) 

The appellant and her former husband were married for 24 years. Three years after their divorce, they began 

living with each other in a state that did not recognize common law marriages. They remarried when the 

husband was found to be terminally ill, and he died the next day. The Board found that the appellant was not 

entitled to an annuity as a former spouse because she remarried prior to the age of 55. However, noting that the 

appellant was the decedent's current spouse at the time of his death, the Board found that she might be eligible 

for benefits as such under 5 C.F.R. 831.603. It further noted that she might, if she is not eligible for annuity as a 

surviving spouse, qualify for a lump sum payment as his widow. 

McCarthy v. Office of Personnel Management, SF08318810632 (July 24, 1989) 

The issue in this case was the creditability of the appellant's service with the Massachusetts National Guard 

for purposes of his Federal retirement. The Board noted that under certain circumstances, military service is 

creditable under 5 U.S.C. 8332(c), so that the issue becomes whether National Guard service constitutes 

military service. Under 5 U.S.C. 8331(13), military service does not include service in the National Guard except 

when ordered to active duty in the service of the United States. The Board held that it will not base its 

determination of creditability solely on the position of the State Adjutant General because National Guard 

service may have both Federal and state components. Although state units are subject to Federal control, 

members of the units remain employed by the state rather than the Federal Government. State National Guard 

members may be considered to perform a Federal function which is creditable as military service when they are 

"called" to active duty by the President, pursuant to 10 U.S.C. 3500 or other similar provisions. The Board found 

that the appellant's service was exclusively for the state under 32 U.S.C. 505 and, therefore, was not creditable 

for purposes of his Federal retirement. 

Security Clearance Cases 

Weissberger v. USIA, DC07528610278 (December 29, 1988) 

The Board found that it had authority to determine whether the appellant had been afforded minimal due 

process in the revocation procedure. The Board concluded that reviewing the action for that purpose would not 

involve the Board in the kinds of security-related decisions the Supreme Court in Egan stated that the Board 

should not make. 

Woroneski v. Department of Navy, PH07528610278 (December 29, 1988) 

The Board found that it could not review the merits of a disparate treatment allegation because to do so 

would intrude upon the agency's authority with respect to security clearances and would involve the Board in 

the kinds of determinations that the Supreme Court in Egan said it should not be reviewing. 
Van Duzer v. Department of the Navy, PH07528610314-1 (August 4, 1989) 

The Board concluded that, in the absence of an agency regulation requiring consideration for reassignment 

of an employee who had his security clearance denied or revoked, it had no authority to review either the 

feasibility of reassignment to a nonsensitive position or the extent of the agency's efforts to do so. 

Riddick v. Department of the Navy, PH07528810154 (August 4, 1989) 

The Board held that it was precluded from reviewing the appellant's arguments concerning the 

constitutionality of the agency's revocation of his security clearance. 

Settlements 

Fredendall v. Veterans Administration, PH043286C0492(October 13, 1988) 

The Board found that, in compliance actions arising from settlement agreements, the party asserting a 

breach of a settlement agreement has the burden of proving his assertion. 

Beaudin v. Department of the Army, DA035187C9024(November 1, 1988) 

The Board found that the evidence of record was insufficient to establish that the parties agreed on the 

meaning of the first term of the settlement agreement or that the agency had complied with its terms. The 

Board, therefore, found that, under the circumstances, the appellant made a nonfrivolous allegation of agency 

noncompliance and further found that, even if the agency was complying with the actual written terms of the 

agreement, there may have been a mutual mistake of a material fact as to what the agency promised to do 

through its representative and, therefore, grounds for invalidation of the agreement and reinstatement 

of the appellant's appeal would exist. The Board determined that the administrative judge should have 

convened a hearing since the questions are of such a nature that credibility determinations are essential. 

Shaw v. Department of Navy, PH075287A0364 (January 30, 1989) 

The Board found that it lacks authority to settle cases over which it lacks jurisdiction and to award attorney 

fees in settled cases where it is not clear that the Board has jurisdiction over the underlying appeal. 

McClain v. U.S. Postal Service, PH075287CO267 (March 3, 1989) 

One of the terms of the settlement agreement in this appeal was that the appellant would resign. The 

appellant, however, did not resign. The Board found that, with respect to the remedy for a breach of contract, 

the party who did not breach the agreement has the option of going forward with the original claim. Because the 

agency wanted the appellant's compliance with the agreement, and because the settlement agreement evidences 

the appellant's voluntary decision to resign, the Board found that the agreement constituted his resignation. 

Smith v. U.S. Postal Service, NY07528610386-1 (June 8, 1989) 

The Board found that the appellant did not knowingly breach the settlement agreement, but that he was 

confused about the agreement because of his mental condition. Therefore, the Board reversed the removal action 

that the agency imposed when it believed that the appellant had breached the settlement agreement. 
Sitas v. Veterans Administration, NY315H8810110 (July 7, 1989) 

The Board found that where one or both of the parties make it clear that they do not want the agreement 

to be made part of the record, the administrative judge need not decide the jurisdiction issue and the case may 

be dismissed pursuant to the settlement. 

Miller v. Department of Health and Human Services, AT075286C0460 (August 7, 1989) 

The Board found that, although the agency did breach the settlement agreement, there was no additional 

relief that it could grant to the appellant since the appellant had not asked that the settlement agreement be set 

aside because of noncompliance and that his merits appeal be reinstated. 

Timeliness 

Malone v. Department of the Air Force, SF07528810367 (September 6, 1989) 

Applying the Federal Circuit's decision in Shiflett to a case where it is not apparent that an appealable action 

was taken, the Board found that there may be good cause for an untimely filing if, at the time of the employee's 

resignation or retirement, the agency knew or should have known of facts indicating that the action was 

involuntary. 
Appendix B 

Significant Board 

Decisions 

Original Jurisdiction 

Cases 

Significant original jurisdiction cases decided by the Board during Fiscal Year 1989 included the 

following: 

Disciplinary Actions Proposed Against Administrative Law Judges 

Social Security Administration v. Boham, HQ75218710010, HQ75218710016 (October 26, 1988) 

The Recommended Decision of the Board's Chief Administrative Law Judge was adopted in this proposal 

for disciplinary action against an administrative law judge. The agency sought to suspend the 

respondent for periods of 30 and 45 days for his refusal, on two occasions, to schedule and hear cases. The 

respondent argued that he could not travel because he had no alternative arrangements for the care of his 

14-yearold daughter. Relying on the Supreme Court's plurality decision in Moore v. City of East 

Cleveland, Ohio, 431 U.S. 494 (1977), the respondent argued that his travel orders unconstitutionally intruded on his family obligations. He also sought to introduce evidence thathe had not presented to the 

agency of his need to remain at home. 

The Board held that while an agency could not interfere with an administrative law judge's judicial 

functions, it may impose reasonable work requirements unrelated to the judicial functions. The Board 

distinguished Moore as being based on a highly unusual fact situation, and rejected the evidence the 

respondent attempted to introduce because the agency was not privy to it when it made its decision to 

seek the suspensions. 

Social Security Administration v. Burris, HQ75218610023 (November 4, 1988) 

The Board sustained four of five charges against the respondent, whom the agency sought to 

remove for insubordination and disrespectful behavior, misuse of the grievance system, and 

misuse of the franked mail system. The unsustained charge, related to insubordination, was 

held by the Board to interfere with the respondent's judicial independence. The other charges 

related to insubordination and disrespectful conduct were sustained. 

The respondent's filing of about 100 grievances over a 26-month period was held to be abuse of that 

system because the grievances contained such excesses that they clearly were intended to harass, rather 

than to seek redress. His use of franked envelopes to make these and other filings was held to be an 

abuse of that system as well, since it is generally left to the agency's discretion to determine what is and 

is not official use of franked mail. Permission to remove the respondent was granted. 
Hatch Act Cases 

Special Counsel v. Hendricks, HQ12068810006 (November 4, 1988) 

The Board adopted the Recommended Decision of its Chief Administrative Law Judge which found that 

the respondent's removal from his position as a state employee was warranted. While a state employee, 

the respondent was a candidate for office in a partisan political campaign. No exceptions were filed, and 

the Recommended Decision was found to be in accordance with law. 

Special Counsel v. Tracy, HQ12068810004 (November 9, 1988) 

In a Recommended Decision, the Board's Chief Administrative Law Judge found that the respondent had 

willfully violated the Hatch Act by running for the state assembly while she was employed by a federallyfunded program. 

He found that her removal was warranted. However, because the respondent had already resigned, the 

Chief Administrative Law Judge found that the only sanction to be imposed against her was an 18-month 

ban on her reemployment by the state. No exceptions were filed, and the Recommended Decision was 

adopted as modified to reflect the legal basis for the 18-month ban. 

Special Counsel v. Hamler, HQ12068910001 (June 28, 1989) 

The Board adopted the Recommended Decision of the Chief Administrative Law Judge in this case, 

ordering the employing agency to remove the respondent for violation of the Hatch Act. The respondent 

had a position in local government that was funded by the Federal government. After becoming a 

candidate in a partisan election, he was advised that he would have to withdraw his candidacy or resign 

from his position. He did neither. He filed no response to the Special Counsel's subsequently filed 

complaint, nor did he respond to the Chief Administrative Law Judge's orders in connection with the 

adjudication of the case. He also declined to file any exceptions to the Recommended Decision. 
Appendix C 

Significant Litigation 

Significant litigation involving the Board during Fiscal Year 1989 included the following: 

Hatch Act Cases 

Biller and Sombrotto v. MSPB, No. 87-4076 (2d Cir. December 15, 1988) 

As presidents of the American Postal Workers Union (APWU) and the National Association of Letter 

Carriers (NALC), the petitioners had been on leave without pay (LWOP) from their Postal Service jobs for a 

number of years. In repeated statements published during 1983 and 1984 in their respective unions' newsletters, 

they urged their membership to vote for Walter Mondale instead of Ronald Reagan in the 1984 presidential 

election. The Special Counsel prosecuted them for violation of the Hatch Act, and the Board found that they had 

violated the Act. The court reversed. 

After finding that, despite their longtime LWOP status, the petitioners were Federal employees and subject to 

the Hatch Act, the court ruled that the Act did not apply to the conduct in question. The court held that the 

legislative history of the Act indicated that Congress intended, where there was a conflict between the Act and 

the First Amendment, that the Act be construed in favor of free expression. It found that Supreme Court cases 

called for a balancing test between the Government's interest in efficiency and integrity and the individual's 

right of free speech and association. It concluded that the resolution of the case lay in a distinction between 

partisan political activity and the expression of opinions. 

The court held that the Hatch Act was intended to proscribe partisan political activity that threatened Government efficiency and integrity. The court held that its violation required a nexus between the employee and the 

effort to promote the political party or its candidate. Because the petitioners were not working with the Mondale 

campaign, but pursuing "the same political goals independently," the court held that such a nexus did not exist. 

On a related charge that the petitioners violated the Hatch Act by encouraging membership contributions to 

their unions' political action funds, the court held that there was no violation. Since the petitioners did not solicit 

the funds in concert with partisan political activity, did not personally collect or administer the funds, and did 

not have supervisory authority over the people from whom the funds were solicited, they had not engaged in the 

conduct the Act was intended to prevent. 

State of Connecticut, Department of Human Resources, and Wayne Camillieri v. MSPB, H87-406 (JAC) and 

H87-779 (JAC) (D.Conn. July 24, 1989) 

Mr. Camillieri and the state agency for which he worked challenged the Board's decision that he had 

violated the Hatch Act by running in a partisan political municipal election and that the violation 

warranted removal. They also challenged a related Board decision, issued because the state agency 

refused to remove Mr. Camillieri, ordering the U.S. Department of Health and Human Services to 

withhold an amount equal to twice Mr. Camillieri's salary from Federal funds provided to the state 

agency. The court granted the Board's motion for summary judgement. The state has appealed to the 

United States Court of Appeals for the Second Circuit. 
State of Connecticut, Department of Human Resources and Jack I. Winkleman v. MSPB, H88-65(JAC) and H88-335(JAC) 

(D.Conn. July 24, 1989) 

Mr. Winkleman and the state agency for which he worked challenged the Board's decision that he had violated the 

Hatch Act by running in a partisan political election for probate judge and that the violation warranted removal. 

They also challenged a related Board decision, issued because the state agency refused to remove Mr. Winkleman, 

ordering the U.S. Department of Health and Human Services to withhold an amount equal to twice Mr. 

Winkleman's salary from Federal funds provided to the state agency. This case was consolidated with Camillieri. 

The court granted the Board's motion for summary judgement. The state has appealed to the United States Court 

of Appeals for the Second Circuit. 

State of Minnesota, Department of Jobs and Training, v. MSPB, No. 87-5346 (8th Cir. May 17, 1989)(en banc) 

The Minnesota district court held that the Board properly found that a state employee, whose agency received 

Federal funds and who ran for political office while on leave without pay, had violated the Hatch Act. The court 

rejected, however, the Board's contention that the employee's violation was willful and warranted removal. The 

Board appealed the second holding to the 8th circuit. Oral argument was held April 13, 1988, and the lower 

court's decision was reversed on October 4, 1988. A petition for rehearing was granted, and an additional oral 

argument was held December 8, 1988. The Board's decision that removal was warranted was affirmed. 

Intervention in OPM Initiated Litigation 

Horner v. Lynch and MSPB, Federal Circuit No. 89-3234, petition for review granted March 30, 1989 

In this pending case, the court considers a petition by the Director of the Office of Personnel Management 

challenging the Board's decision in Lynch v. Department of Education, 39 M.S.P.R. 319 (1988), holding that the 

Director was not entitled to reconsideration of a prior ruling in the case finding handicap discrimination in violation 

of the Rehabilitation Act. The Director argues that the Board erred in ruling that the Rehabilitation Act and 

other laws prohibiting discrimination are not "civil service laws" for the purposes of 5 U.S.C. 7703(d). The Board 

and respondent Lynch contend that the Director's interpretation of the statute is inconsistent with the statutory 

context and the legislative history and that it would permit the Director to obtain Federal Circuit review of rulings 

on issues of discrimination law, undermining the employee's right to de novo consideration of his discrimination 

claims by the district court. 

Other Significant Litigation 

Joseph Orange v. MSPB, No. 87-2553(DLJ) (N.D.Ca. July 26, 1989) 

In this mixed case appeal, the court granted the Board's motion to dismiss on the grounds that the Board was 

improperly named as a party. 

Homer v. Benedetto, 847 F.2d 814 (Petition for rehearing en banc denied) (Fed. Cir. 1988) 

The court affirmed the Board's ruling that a 1966 repeal of a provision excluding retroactive application of a 

statute permitting deferred annuitants to elect annuities with survivor benefits allowed retirees who became 

eligible for deferred retirement after 1966 to elect survivor annuities. At the court's request, the Board filed a brief 

in opposition to a petition for rehearing en banc on August 16, 1988. The petition was denied on September 19, 

1988. 
Appendix D 

Special Studies 

The following summaries of special study reports released by the Board during Fiscal Year 1989 

highlight the findings and recommendations in those studies. The reports summarized include the 

Board's annual oversight review of the significant actions of the Office of Personnel Management and three 

studies of other merit systems issues. 

U.S. Office of Personnel Management: 

A Retrospective Assessment. 

This report assessed some of the major activities of the Office of Personnel Management during its 

first decade. In commemoration of the 10th anniversary of the Civil Service Reform Act, this report 

provided a synthesis of the findings and conclusions from published Board reports on OPM 

significant actions dating back to calendar year 1980. It also outlined the high expectations set for 

OPM by the CSRA and discussed the degree to which the OPM activities and programs covered by the 

report met those expectations. 

The Board found that, during its first decade, OPM struggled with its assigned role in a rapidly 

changing Federal work environment. Consequently, during much of that time OPM was unable to meet 

some of the CSRA expectations in the following areas: 

• Decentralizing personnel management authority; 

• Overseeing the civil service; and 

• Providing program guidance and leadership. 

The Board found that one reason OPM did not accomplish all of the goals set for it by the CSRA was a 

significant cutback in funding and staff resources during its first 10 years. The report concluded with 

recommendations for OPM action and direction in the coming decade. Among other things, the report 

recommended that OPM clearly establish itself as a leader of the civil service system by building upon the 

framework laid in the "Civil Service 2000" report prepared by the Hudson Institute. 
Merit Systems Studies 

First-Line Supervisory Selection in the Federal Government 

This study of the systems used by Federal officials to select individuals for their first supervisory job 

found that Federal agencies use few different or innovative systems tailored specifically to the selection 

of first-line supervisors. For the most part, agencies select individuals for such positions using a process 

identical to the one used to fill all other types of jobs. 

To determine if agency needs are being met by their current supervisory selection systems, the Board 

conducted on-site reviews of one representative agency that uses the typical approach and four agencies 

that use different strategies. The Board concluded that it is highly unlikely that any one strategy will be 

totally effective in meeting all needs because of the diversity of work performed, organizational environments, and agency missions. Additionally, the study revealed that the selection strategy typically used 

by most agencies may not be adequate for meeting selection needs in all situations. 

The report recommended that agencies take a much closer look at their own supervisory selection 

strategies to determine if they are adequate for meeting their needs. Those agencies that are 

experiencing organizational problems that may be related to the quality of their supervisors were especially encouraged to consider alternative selection methods. 

Who Is Leaving the Federal Government? An Analysis of Employee Turnover 

This report gathered and analyzed governmentwide employee turnover data from the OPM Central 

Personnel Data File. The study covered Federal employee departures during FY 1987, the most recent 

year for which data were available, and included all full-time permanent white collar employees. 

The overall turnover rate was 9 percent. Over half (58 percent) of the departing employees resigned 

voluntarily, and 25 percent retired. The highest turnover rates were for employees with less than 1 year 

of experience (25 percent) and those with over 30 years experience. Contrary to conventional wisdom, 

computer specialists and engineers had some of the lowest turnover rates. This finding suggested that 

difficulties experienced in these occupations may be more in the area of recruiting than retention. 

In order to look behind the numbers for qualitative data, the Board planned a second report, based 

on a survey of exiting employees, to address the critical question of why Federal employees leave. 
The Tennessee Valley Authority and the Merit Principles 

This was the Board's first study of a Federal merit system outside the civil service (Title 5). The 

report described the personnel systems and practices of the Tennessee Valley Authority £.TVA), 

compared them to the systems and practices of the civil service, and assessed them against the nine 

statutory merit principles. 

The Board found that TVA has far greater flexibility than the civil service in setting pay and that the 

agency negotiates over a much wider range of issues, including pay, job classification, and health 

insurance. Unions play a far more prominent role in TVA, where union membership is 

encouraged and rewarded with preference in hiring—a feature the report criticized as contrary to the 

merit principle requiring "fair and open" competition. 

The report concluded that the TVA merit system appeared to serve the needs of that agency 

well. The Board recommended that the Congress and OPM consider the positive experiences of TVA as 

they explore ways to improve the civil service system for the future.