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

Submitted to the President and the

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

Washington, DC 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

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

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

Federal employee appeals and other cases decided by the Board. 

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

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

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

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

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

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

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

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

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

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

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

taxpayers who fund Government activities. 

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

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

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

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

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

its previous studies of sexual harassment in the Federal workplace. 

Respectfully submitted 

Ben L. Erdreich 

Chairman 

 Beth S. Slavet Antonio C. Amador 

 Vice Chairman Member 
TABLE OF CONTENTS

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

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

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

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

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

FISCAL YEAR 1995 CASE PROCESSING - 

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

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

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

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

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

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

APPENDIX A - SIGNIFICANT BOARD DECISIONS 

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

APPENDIX B - SIGNIFICANT BOARD DECISIONS 

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

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

APPENDIX D - MERIT SYSTEMS STUDIES AND 

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

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

5
BOARD MISSION AND JURISDICTION

MISSION

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

Reform Act of 1978 (CSRA), Public Law 95-454, as a successor agency to the Civil Service 

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

the guardian of Federal merit systems. 

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

agency management, that Executive Branch agencies make employment decisions in 

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

prohibited personnel practices. The Board accomplishes its mission by: 

• Hearing and deciding employee appeals from agency personnel actions (appellate 

jurisdiction); 

 

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

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

 

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

determine whether they are free of prohibited personnel practices; and 

 

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

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

principles and free of prohibited personnel practices. 

JURISDICTION

Appellate Jurisdiction 

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

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

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

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

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

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

appealable to the Board. 

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

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

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

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

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

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

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

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

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

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

circumstances. Included are appointments, promotions, details, transfers, reassignments, and 

decisions concerning pay, benefits, awards, education, or training. Such an action may be 

appealed to the Board only if the appellant alleges that the action was taken because of 

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

Special Counsel did not seek corrective action from the Board, 

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

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

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

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

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

excluded. 

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

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

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

who have completed their probationary period; (2) non-preference eligible employees in the 

excepted service (excluding those in the Postal Service and certain other agencies) who have 

completed two years current continuous service in an Executive agency; and (3) non-preference 

eligible supervisors and managers in the Postal Service. 

Original Jurisdiction

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

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

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

have violated certain civil service laws, rules or regulations; 

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

prohibited personnel practices; 

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

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

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

implementation of OPM regulations by an agency; and 

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

Executive Service. 
Judicial Review

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

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

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

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

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

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

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

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

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

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

7 
BOARD MEMBERS

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

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

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

Chairman 

BEN L. ERDREICH became Board Chairman on July 2, 1993, following his nomination by 

President Clinton and confirmation by the Senate. His term appointment expires March 1, 2000. 

Previously, he served for 10 years in the U.S. Congress as the representative of the 6th District 

of Alabama. He was a member of the Committee on Banking, Finance and Urban Affairs and 

chaired its Subcommittee on Policy Research and Insurance. Mr. Erdreich was a Member of 

the Jefferson County (Alabama) Commission from 1974 to 1982. Prior to that, he was a partner 

in the firm of Cooper, Mitch & Crawford, Attorneys, in Birmingham, Alabama. He served in the 

Alabama House of Representatives from 1970 to 1974. He is a graduate of Yale University and 

received his J.D. degree from the University of Alabama School of Law. He is admitted to the 

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

Columbia, Alabama, and Birmingham bar associations. 
Vice Chairman

BETH S. SLAVET took the oath of office as Vice 

Chairman and member of the U.S. Merit Systems 

Protection Board on August 15, 1995, following her 

nomination by President Clinton and confirmation by the 

Senate. Her term appointment expires March 1, 2002. 

Ms. Slavet served as Labor Counsel to the Committee on 

Labor and Human Resources of the U.S. Senate from 

March 1993 until January 1995. Previously, she was 

Legislative Counsel and Staff Director for U.S. 

Representative Chester Atkins (D-MA). From 1984 to 

1992, Ms. Slavet was an attorney in private practice in 

Washington, DC, representing public and private sector 

unions and employees. Prior to that, she served as the 

staff attorney to the American Federation of Government 

Employees Local 1812 in Washington, DC. She is a 

graduate of Brandeis University and received her J.D. 

degree from the Washington University School of Law. 

She is admitted to the District of Columbia Bar. 

Member 

ANTONIO C. AMADOR became Vice Chairman of 

the Board on November 1, 1990, following his 

nomination by President Bush and confirmation by the 

Senate. Currently, he serves as Member of the Board. 

His term appointment expires March 1, 1997. At the 

time of his appointment to the Board, Mr. Amador was 

Deputy Director, Program Review Branch, Employment 

Development Department of the State of California. 

Previously, he served as Director of the California 

Youth Authority, as Chairman of the Youthful Offender 

Parole Board in California, and as a police officer in the 

Los Angeles Police Department. He received his law 

degree from the McGeorge School of Law, University 

of the Pacific. 
BOARD ORGANIZATION

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

Each has his/her individual office. 

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

Office heads report to the Chairman through the Chief of Staff. 

The Office of Regional Operations

manages the appellate functions of the MSPB regional offices. The five regional offices 

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

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

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

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

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

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

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

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

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

motion, and provides research and policy memoranda to the Board on legal issues. 

The Office of the Administrative Law Judge adjudicates Hatch Act cases, corrective and 

disciplinary action complaints brought by the Special Counsel, proposed agency actions against 

administrative law judges, and other cases assigned by the Board. 

The Office of the Clerk of the Board receives and processes cases filed with the Board, 

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

also manages the Board's electronic bulletin board files, certifies official records to the courts 

and Federal administrative agencies, maintains the Board's law library, manages the Board's 

records, and administers the Board's Freedom of Information Act, Privacy Act, and Government 

in the Sunshine Act programs. 

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

Board and its organizational components on matters of law arising in day-today operations. It 

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

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

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

and produces the agency's annual report to the President and the Congress and public 

information publications. The office also conducts the Board's ethics program and plans and 

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

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

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

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

agencies seeking to improve agency operations through more effective human resources 

management. 

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

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

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

managers and supervisors. 

The following three administrative divisions operate under the supervision of the Chief of 

Staff: 

The Financial and Administrative Management Division administers the budget, 

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

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

projects, including review of internal controls agencywide. 

The Human Resources Management Division manages personnel programs and assists 

managers, employees, and 

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

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

The Information Resources Management Division develops, implements, and maintains the 

Board's automated information systems in order to help the Board manage its caseload 

efficiently and carry out its administrative and research responsibilities. 

NOTE: The description of office functions above and the accompanying Organization 

Chart reflect the MSPB organization at the time of publication of this report. During FY 1995, 

the Office of Regional Operations and the Office of the Administrative Law Judge were a single 

office under the direction of the Administrative Law Judge,
11 
 

REGIONAL OFFICIALS 
REGIONAL AND FIELD 

OFFICE JURISDICTIONS 

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

Central Regional Office -- Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; 

Missouri; Ohio; and Wisconsin 

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

Northeastern Regional Office -- Delaware; Maryland (except the counties of Montgomery and Prince 

George's); New Jersey (except the counties of Bergen, Essex, Hudson, and Union); Pennsylvania; and 

West Virginia 

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

Vermont 

New York Field Office -- New Jersey (counties of Bergen, Essex, Hudson, and Union); New York; 

Puerto Rico; and Virgin Islands 

Washington Regional Office -- Washington, DC; Maryland (counties of Montgomery and Prince 

George's); North Carolina; Virginia; and all overseas areas not otherwise covered 

Western Regional Office -- California and Nevada 

Denver Field Office -- Arizona, Colorado, Kansas (except Kansas City), Montana, Nebraska, New 

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

Seattle Field Office -- Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas 
FISCAL YEAR 1995 CASE PROCESSING 

STATISTICAL HIGHLIGHTS 

CASES DECIDED BY MSPB IN FY 1995

Regional/Field Office Decisions:

 Initial Appeals 9,594 

 Addendum Cases1 l,174 

 Stay Requests 2 120 

TOTAL REGIONAL/FIELD OFFICES 10,888

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Initial Appeals 1,935 

 PFRs - Addendum Cases 1 188 

 Reviews of Stay Request Rulings 0 

 Requests for Stay of Board Order 6 

 Reopenings 3 14 

 Court Remands 16 

 Compliance Referrals 60 

 EEOC Non-concurrence Cases 1 

 Arbitration Cases 6 

 Subtotal 2,226 

 Original Jurisdiction 49 

TOTAL BOARD 2,275

TOTAL BOARD + RO/FOs 13,163

1

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

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

2

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

are authorized in whistleblower cases only. Appellants, however, sometimes file stay requests in cases 

in which no whistleblower issues are involved.)

3

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

reconsideration.
KINDS OF APPELLATE JURISDICTION CASES

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

decisions or orders are: 

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

• Stay Request - A request that the Board order a stay of an agency action (authorized only where the 

appellant alleges that the action was or is to be taken because of whistleblowing). 

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

the agency to pay the appellant's attorney fees. 

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

appeal on the basis of discrimination for payment of compensatory damages under the Civil Rights 

Act of 1991. 

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

appeal for payment of consequential damages, as authorized by 5 U.S.C. §1221. 

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

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

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

Attorney fee cases, petitions for enforcement, requests for damages, and remands, as a group, are 

termed "addendum cases" by the Board. 

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

headquarters. Initial decisions in addendum cases and orders issued on stay requests are also subject 

to review by the Board. In addition, the Board has authority to review an arbitrator's award when the 

subject of the grievance is an action appealable to the Board and the grievant raises a discrimination 

issue in connection with the action. The kinds of appellate jurisdiction cases in which the Board issues 

final decisions or orders are: 

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

administrative judge. A petition review may be filed with respect to an initial decision on an appeal 

or in an addendum case. 

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

judge's order ruling on a stay request. 

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

the employee has grieved an action appealable to the Board and the employee raises an issue of 

prohibited discrimination. 

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

reconsider either an initial decision of an administrative judge or a final Board decision. 
• OPM Request for Reconsideration - A request by the Director of OPM that the Board reconsider a 

final decision. 

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

has sought judicial review of a final Board decision, for issuance of a new decision. Also, a case 

returned by a court where the Board has requested remand. 

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

sought EEOC review of a Board decision, in which the EEOC does not concur with the Board 

decision on the discrimination issue. 

 

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

final Board decision, upon the administrative judge's finding that a party is not in compliance. 

 

• Request for Stay of Board Order - A request by a party that a final order of the Board be stayed 

pending judicial review or a request for reconsideration by the Director of OPM. 

APPELLATE CASE PROCESSING IN FISCAL YEAR 1995

Regional and Field Offices 

• Case Receipts - The regional and field offices received 9,978 new cases in FY 1995, compared to 

9,965 in the previous fiscal year. Appeals and related cases arising from the Postal Service 

restructuring accounted for 18 percent of all receipts. At the end of the fiscal year, there were 2,335 

cases pending in the regional and field offices, down 28 percent from the number pending at the end 

of the previous fiscal year. 

• Cases Decided - The 10,888 cases decided by administrative judges in FY 1995 represented an 

increase of 27 percent from the previous fiscal year. Of the cases decided, 9,594 were initial 

appeals and 1,174 were addendum cases. Decisions on initial appeals were up 27 percent from the 

previous year, and those in addendum cases were up 29 percent. There were 120 orders ruling on 

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

authorized in whistleblower cases only. Appellants, however, sometimes file stay requests in cases 

in which no whistleblower issues are involved.) Decisions on stay requests increased 9 percent. 

• Disposition - Of the 9,594 initial appeals decided, 5,723 (60 percent) were dismissed. Of the 

dismissals, 59 percent were for lack of jurisdiction, agency cancellation of the action, or appellant 

withdrawal of the appeal, 31 percent were dismissed as untimely, and 10 percent were dismissed 

without prejudice to later refiling. (The percentage of cases dismissed as untimely was substantially 

higher than in previous years because of the impact of appeals resulting from the Postal Service 

reorganization.) The accompanying charts show the outcomes of appeals that were not dismissed 

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

(Pie Chart below shows that of the 3871 initial appeals not dismissed, 1825 (47%) were Settled, 656 (17%) were Reversed, 104 (3%) were 

Mitigated, 1278 (33%) were Affirmed, and 8 (les that 1%) were Other.) 

Other

(8) 0%

Affirmed

(1,278) 33%

Mitigated

(104) 3%

Reversed

(656) 17%

Settled

(1,825) 47%

Based on 3,871 initial appeals not dismissed. 

COMPARISON OF MSPS REGIONAL CASE DECISIONS 

FISCAL YEARS 1994 AND 1995

Cases Decided in FY 1994 FY 1995 % Increase 

 Regional/Field Offices 

Initial Appeals 7,530 9,594 + 27% 

Addendum Cases 912 1,174 + 29% 

Stay Requests 110 120 + 9% 

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

MERITS IN FY 1995

(Pie chart below shows that of the 2046 adjudicated initial appeals, 1278 (62%) were Affirmed, 104 (5%) were Mitigated, 656 (32%) were 

Reversed, and 8 (less than 1%) were Other.) 

Affirmed

(1,278 62%

Other

(8) 0%

Reversed

(656) 32%

Mitigated

(104) 5%

Based on 2,046 adjudicated initial appeals. 

Percentages do not total 100% because of rounding. 

• Settlement Rate - Of the 3,871 appeals that were not dismissed, 1,825 were settled, for an overall 

settlement rate of 47 percent. The settlement rate for adverse action cases was 64 percent; for 

performance cases, 70 percent; and for denials of within-grade increases, 82 percent. 

 

• Relief for Appellants - Considering the number of appeals settled (1,825) and those in which the 

agency action was reversed or mitigated (760), appellants received relief in about two-thirds of the 

appeals that were not dismissed. 

 

• Processing Time - The average processing time for initial appeals and addendum cases was 96 

days, compared to 81 days in FY 1994. The increase in processing 

 time reflects both the increase in number of cases decided and an 8 percent reduction in regional 

and field office staff. Of the initial appeals decided, 84 percent were decided within 120 days. 

 

• Types of Actions Appealed - Of the initial appeals decided, 46 percent were appeals of agency 

adverse actions, 24 percent were RIF appeals, and 2 percent were appeals of performance-based 

actions. Appeals arising from the Postal Service restructuring accounted for 68 percent of the RIF 

appeals and 22 percent of the adverse action appeals. Retirement cases (both CSRS and FERS) 

accounted for 15 percent of total appeals decided ' and the remainder involved other types of 

agency actions. 
TYPES OF INITIAL APPEALS DECIDED IN FY 1995

Individual Right of Action (180) 2%

CSRS Retirement: Overpayment (215

CSRS Retirement: Disability (21

CSRS Retirement: Legal (8

FERS Retirement: (234) 2%

Other Appeals (611) 6%

Denial of Within Grade (56) 1%

Termination of Probationers (224) 2%

Reduction in Force (2,303) 24%

Suitability (73) 1%

Adverse Action (4,456) 46%

Performance (145) 2%

Total Number of Initial Appeals: 9,594 

Percentages do not total 100% because of rounding. 

(Above Pie Chart shows the 9594 initial appeal types with actual number and percent of whole: Adverse Action (4,456) 46%, Suitability (73) 1%, 

Reduction in Force (2,303) 24%, Termination of Probationers (224) 2%, Denial of Within Grade (56) 1%, Other Appeals (611) 6%, FERS 

Retirement: (234) 2%, CSRS Retirement: Legal (884) 9%, CSRS Retirement: Disability (213) 2%, CSRS Retirement: Overpayment (215) 2%, 

Individual Right of Action (180) 2%, and Performance (145) 2%) 

• Whistleblower Appeals - There were 505 whistleblower appeals and stay requests decided. 

Of this number, 180 were individual right of action (IRA) appeals in which the appellant was 

required to exhaust the procedures of the Office of Special Counsel, 248 were direct 

appeals to the Board that included an allegation of reprisal for whistleblowing, and 77 were 

requests to stay an action allegedly based on whistleblowing. 

• Relief for Appellants in Whistleblower Appeals - Of the 428 whistleblower appeals decided 

(180 IRA appeals and 248 appeals of otherwise appealable actions), 251 (59 percent) were 

dismissed. In the other 177 whistleblower appeals, appellants received relief--through 

settlement, reversal, or mitigation--in 111 (63 percent). 

• Mixed Cases - Allegations of discrimination were raised in 2,472 of the initial appeals 

decided; however, in 2,058 of those appeals, the discrimination issue was not decided 

because the case was dismissed (1,410) or settled (589) or the allegation was withdrawn 

(59). The remaining 414 mixed case appeals resulted in a finding of no discrimination in (98 

percent) and a finding of discrimination in 10 (2 percent). 
Board Headquarters

• Case Receipts - At headquarters, the Board received 2,160 new petitions for review and other 

appellate jurisdiction cases in FY 1995, an increase of 14 percent over the number received the 

previous fiscal year. PFRs of initial decisions in appeals resulting from the Postal Service 

restructuring accounted for 28 percent of all PFR receipts. At the end of the fiscal year, there were 

522 appellate jurisdiction cases pending at headquarters, down 11 percent from the number pending 

at the end of the previous fiscal year. 

• Cases Decided - The 2,226 appellate jurisdiction cases decided by the 3-member Board in FY 1995 

represented an increase of 10 percent from the previous fiscal year. Of the cases decided, 1,935 

were petitions for review of initial decisions on appeals, 188 were petitions for review of initial 

decisions in addendum cases, and 103 were other appellate jurisdiction cases. 

• Disposition - Of the 1,935 petitions for review of initial decisions on appeals, 7 percent were 

dismissed, 2 percent were settled, and 78 percent were denied for failure to meet the criteria for 

review. The Board reviewed the remaining 13 percent-made up of 5 percent denied but 

simultaneously reopened by the Board and 8 percent granted. 

• Outcome of PFRs Reviewed - Of the decisions in the 246 PFRs that were granted or denied but 

simultaneously reopened, percent affirmed the initial decision, percent reversed it, 27 percent 

remanded the case to the administrative judge, and 2 percent mitigated the agency action. In the 

remaining 11 percent, the initial decision was vacated or the case was forwarded to a regional/field 

office for processing. 

• Processing Time - The average processing time for all petitions for review (on both initial appeals 

and addendum cases) was 96 days, compared to 161 days in FY 1994. This 40 percent reduction in 

processing time was achieved in spite of the increased number of cases decided and a 12 percent 

reduction in headquarters attorneys who process PFRs. The Board processed 81 percent of the 

PFRs on initial appeals in 110 days or less, averaging 57 days. 

Judicial Review

• The U.S. Court of Appeals for the Federal Circuit reviewed 654 final Board decisions in FY 1995. Of 

this number, 94 percent were left unchanged (case dismissed or Board decision affirmed). The 

court affirmed the Board decision in 92 percent of the cases it adjudicated. 

Additional fiscal year 1995 case processing statistics, including a breakdown of appeals by agency, 

are contained in the Board publication, A Study of Cases Decided in FY 1995.
ADJUDICATION

APPELLATE JURISDICTION

PROCEDURES

Initial Appeals

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

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

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

date of the notice. 

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

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

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

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

agency then have the opportunity to present additional information for the administrative judge's 

consideration. Under certain circumstances, the appellant may have a right to a hearing on the 

issues of jurisdiction and timeliness. 

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

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

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

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

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

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

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

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

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

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

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

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

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

where the appellant has first filed a complaint with the Special Counsel. An appellant must file 

with the Special Counsel first if the complaint is based on an action that is not otherwise 

appealable to the Board and may file with the Board only after exhausting the procedures of the 

Office of Special Counsel. Appeals that reach the Board in this way are termed "individual right 

of action" or "IRA" appeals. 

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

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

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

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

corrective action on his or her behalf. 
Where an appeal includes a whistleblower allegation and is based on an action that is 

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

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

time limits for filing are the same as for all other direct appeals to the Board (30 or 35 days, 

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

the time limits for filing with the Board are the same as for an IRA appeal. In either case, such 

an appeal is termed an "otherwise appealable action" or "OAA" appeal. 

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

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

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

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

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

receipt of the request. 

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

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

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

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

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

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

effective date of the agency action. 

 

Appeals involving classified national security information and appeals from MSPB 

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

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

Petitions for Review 

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

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

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

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

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

due diligence, was not available when the record was closed. 

When an agency files a petition for review of an initial decision that provided interim relief to 

the appellant, the agency must furnish evidence that it has provided appropriate interim relief. If 

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

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

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

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

initial decision on its own motion. The Board's decision on a petition for review constitutes the 

final administrative action. 

SIGNIFICANT ISSUES 

ADDRESSED IN APPELLATE 

CASES 

Postal Service Restructuring Cases

The U.S. Postal Service's 1992-1993 nationwide restructuring resulted in a large number of 

appeals to the Board, including challenges to actions taken in the restructuring itself as well as 

attorney fee requests and compliance issues. The accompanying table displays MSPB 

decisions and related litigation during fiscal years 1993-1995 in all cases arising from the Postal 

Service restructuring. 

POSTAL SERVICE RESTRUCTURING CASES 

DECIDED BY MSPB IN FY 1993-1995

AND RELATED LITIGATION 

FY 1993 FY 1994 FY 1995 TOTAL 

Regional\ Field Offices: 

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

 Addendum Cases: 

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

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

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

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

 Total Regional\ Field 

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

Board Headquarters: 

 Petitions for Review - 

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

 Petitions for Review - 

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

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

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

 Requests to Stay Board 

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

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

Litigation (Federal Circuit): 

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

 Pending 9 / 30 / 95...................................... ...................... ............... 204....................204 
Having previously ruled in such lead cases as White v. U.S. Postal Service, 63 M.S.P.R. 

299 (1994), and Robinson v. U.S. Postal Service, 63 M.S.P.R. 307 (1994), that demotions 

effected in the Postal Service restructuring were reduction-in-force actions, the Board this year 

applied that ruling to a number of cases raising related issues. The Board decided numerous 

appeals involving employees who retired or requested placement in lower graded positions as a 

result of the uncertainties of the restructuring. It held that where the agency had not assigned 

such an employee to a lower graded position by the time he retired (see, for example, Bissett v. 

U.S. Postal Service, 66 M.S.P.R. 631 (1995)) or requested a different job (see, for example, 

Smitka z7. U.S. Postal Service, 66 M.S.P.R. 680 (1995)), the employee had not been subjected 

to a RIF action. Thus, the separation or placement did not become appealable simply because 

the employee did not know how the restructuring would work out. That the agency did not know 

any more than the appellant about the future defeated the appellant's claim of misinformation 

and involuntariness. 

Similarly, in Jones v. U.S. Postal Service, 65 M.S.P.R. 306 (1994), the Board held that 

employees who retired rather than face the possibility of being demoted during the restructuring 

were not entitled to notice of any right of appeal either at the time of their retirement or upon the 

issuance of the Board's lead 1994 decisions. Thus, their delay in filing with the Board until well 

after either event could not be excused by the lack of notice. 

The Board's decisions in the Postal Service restructuring cases were followed by a number 

of petitions for enforcement filed in the regional and field offices. Many of the petitions resulted 

in the issuance of recommendations by the administrative judges that the agency be found in 

noncompliance with the Board's orders. The petitions for enforcement were therefore referred 

to the Board for enforcement. 

In December 1994, the Board issued a lead decision in Sink v. U.S. Postal Service, 65 

M.S.P.R. 628 (1994), ordering the agency to restore the appellant to his former position or to 

issue him a specific notice of RIF within 120 days of the decision. In light of the extended 

compliance period and the unusual circumstances, the Board appointed its General Counsel to 

serve as Special Compliance Officer in this case. The Special Compliance Officer was given full 

oversight responsibility, including the authority to require periodic progress reports, set 

deadlines, initiate conference calls, issue show cause orders, and take whatever other steps 

were necessary and appropriate to obtain full compliance with its order. In a subsequent lead 

case, Unhoch v. U.S. Postal Service, 66 M.S.P.R. 651 (1995), the Board extended the holding 

of Sink to all compliance cases arising out of the agency's 1992-93 restructuring. 

Sixty-nine cases were referred to the Board by the regional and field offices as a result of 

recommendations finding that the Postal Service had not complied with the Board's final 

decisions in the restructuring cases. In August 1995, the Board issued a final decision in Sink v. 

U.S. Postal Service, 68 M.S.P.R. 497 (1995), finding that the agency had timely issued its 

specific notice of reduction in force and that, by doing so, it had fully complied with the Board's 

December 1994 order. The Board, therefore, dismissed the petition for enforcement in that 

case. 

25 
At the end of FY 1995, there were 328 Postal Service restructuring appeals including new 

appeals arising from the agency's 1995 compliance RIF- and 26 addendum cases pending in 

the regional and field offices. At headquarters, there were 21 petitions for review, 67 

enforcement cases, and 1 reopening pending. 

Other Significant Issues Addressed

The Board addressed many other issues directly affecting the Federal personnel 

community. It continued to develop the law under 5 U.S.C. 2302(b)(8), the part of the 

Whistleblower Protection Act that protects employees against reprisals 'For the disclosure of 

information they reasonably believe evidences a violation of law, rule, or regulation, gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific 

danger to public health or safety, by extending its protections to: disclosures made to coworkers; 

disclosures that constitute statements of opinion; disclosures made in the context of settlement 

negotiations; certain disclosures that were also made in the exercise of an appeal, complaint, or 

grievance right under section 2302(b)(9); disclosures that could prevent governmental 

wrongdoing even though no actual wrongdoing has vet occurred; and statements of an intent to 

disclose a matter about which the employee has a reasonable belief. 

The Board issued its first decision applying its new regulations that address what it will do in 

the situation where, following an interim relief order, only the appellant files a petition for review. 

This represents a significant departure from the usual case, because in this situation there is no 

agency petition subject to dismissal as a sanction for the agency's failure to submit evidence of 

compliance with the interim relief order. In this decision, the Board ordered the agency to 

submit proof of compliance with the interim relief order and retained jurisdiction over the interim 

relief issue despite its remand of the appeal to the administrative judge. 

The Board also clarified and modified its precedent relating to adverse actions. It ruled that 

an indefinite suspension, which is based on reasonable cause to believe the appellant guilty of a 

crime for which a sentence of imprisonment may be imposed, cannot be sustained, regardless 

of what the facts subsequently show, if the agency did not have evidence before it at the time it 

acted that met the standard. The Board also extended the law by allowing agencies to take an 

adverse action based on a charge of failure to follow proper procedures for requesting leave, 

even where that leave was ultimately approved. 

Based on an extensive review of the law in connection with an adverse action appeal, the 

Board determined that an action may be taken on the basis of an appellant's failure to comply 

with an ordered reassignment, later determined to be invalid, if the invalidity is due to the means 

by which the reassignment was effected rather than the reasons for it. Thus, the reversal of a 

reassignment on procedural grounds would not alone insulate the appellant from discipline for 

his failure to follow that order. 

The Board also issued decisions of significance addressing drug abuse. In these decisions, 

it determined that in accordance with the Americans With Disabilities Act, the Rehabilitation Act 

no longer protects as a "disability" the use of illegal drugs; ruled that reasonable suspicion drug 

testing may only be done where such suspicion exists at the time the test is ordered; and held 

that under Executive Order 12564, neither reversal nor mitigation is required just because the 

addictive nature of a drug may cause a temporary relapse shortly after treatment begins. 
Beyond these holdings, the Board also ruled on several RIF-related issues that will clarify 

the requirements for such actions. These rulings will provide guidance in the years ahead as 

agencies downsize and face an increasing likelihood of the need to use the RIF procedures of 5 

CFR Part 351. In addition, the Board addressed such important issues as the extent to which a 

settlement that does not specify that the agency may not retaliate against the appellant for 

having entered into it may serve as the basis for a claim that the agreement was breached, and 

the authority of administrative judges to order a security presence at hearings to safeguard the 

parties and participants. 

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

year 1995.

ORIGINAL JURISDICTION PROCEDURES AND CASES DECIDED

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

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

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

law judge against whom an agency proposes an action also has 35 days to respond and is 

entitled to a hearing. These cases, as well as Special Counsel corrective action complaints, are 

assigned to the Board's Administrative Law Judge, who issues a recommended decision to the 

Board for final action. 

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

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

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

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

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

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

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

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

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

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

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

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

employing agency, OPM, and the Special Counsel for appropriate action. 

The number of each type of original jurisdiction case decided in fiscal year 1995 and the 

outcomes of those cases are set forth in the accompanying table. 
ORIGINAL JU TIO RISDIC N CASES DECIDED

BY MSPB IN FY 1995

CASE TYPE NUMBER DISPOSITION

 DECIDED

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

OSC Disciplinary Actions -

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

Settled - 1 

OSC Disciplinary Actions -

Hatch Act:

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

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

OSC Stay Requests:

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

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

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

prejudice 

Agency Motion for 

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

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

 compliance ordered 

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

Dismissed - jurisdiction - I 

Dismissed - withdrawn - 3 

Settled - 2 

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

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

Dismissed - jurisdiction - 3 

SES Performance-based Removals

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

Report issued - I 

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

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

fiscal year 1995.

28 
ADMINISTRATIVE LAW JUDGE FURLOUGH CASES

Near the end of the fiscal year, twelve agencies filed actions with the Board asking for 

authorization to furlough their administrative law judges in the event of a lapse in appropriations 

at the end of fiscal year 1995. Three of these agencies also asked for authorization to furlough 

their administrative law judges in the event they received significantly lower appropriations for 

fiscal year 1996 than their 1995 amounts, as expected. 

Unlike other Federal employees, administrative law judges are entitled under 5 U.S.C. 

§7521 to a hearing and decision by the Board before their agencies may subject them to certain 

personnel actions, including a furlough of 30 days or less. The Board must authorize a 

proposed action under section 7521, upon a showing of good cause, before an agency can 

effect it. 

At the end of the fiscal year, these cases were pending. The cases based on an anticipated 

end of the fiscal year lapse in appropriations were subsequently dismissed as moot in October, 

following the signing of the first continuing resolution for FY 1996. The three cases based on 

expected reductions in appropriations, as well as new actions filed by agencies in anticipation of 

a lapse in appropriations as continuing resolutions expired, were referred to the Board's 

Administrative Law Judge for adjudication. 

IMPROVEMENTS IN THE ADJUDICATORY PROCESS

Regional and Field Offices 

The dramatic increase in the number of cases decided in the regional and field offices in 

fiscal year 1995-27 percent more than in the previous fiscal year occurred as regional staffing 

declined by 8 percent. The overall increase in productivity was achieved largely through the 

efforts of the administrative judges-who handled an average 158 cases each, compared to 

124 in FY 1994-and support staff, together with such process improvements as consolidating 

hearing travel. In light of the continual pressure from Congress, and the efforts of the President, 

to reduce the size of the Federal Government and its workforce, there appears no reason to 

expect anything but a continued elevated caseload as agencies work to reduce their 

employment levels and accommodate shrinking budgets. 

In August 1995, the Board realigned the geographical jurisdictions of its regional and field 

offices to match caseload more closely with the staffing of each office. In addition, two 

administrative judge positions were reallocated among the offices. The Board continued to fill 

vacancies in administrative judge positions from within, with several headquarters attorneys 

moving to administrative judge positions in the regional and field offices and some judges 

moving from one regional or field office to another. 

During the fiscal year, the regional and field offices continued their experimentation with the 

use of settlement judges. Some offices designated one administrative judge to serve full-time 

as settlement judge. Other offices employed variations on the concept, such as having the 

regional director serve as settlement judge or setting up an informal system in which 

administrative judges assign cases among themselves for settlement. 
Reports from the regional and field offices indicate that the settlement judge concept has 

resulted, in some regions, in an increase in settlements. Use of a settlement judge has the 

advantage of ensuring the separation of settlement negotiations from the adjudication process. 

With a single settlement judge, other judges in the office are freed from settlement negotiations, 

and their production of adjudicated cases can increase. In some instances, however, this 

approach can lead to burnout of the settlement judge, especially when more complex cases are 

targeted for settlement. The Board will continue to monitor results in this area in order to 

determine whether the continued use of settlement judges produces the desired cost savings 

and increases in production. 

The Board also completed its first pilot video tele-hearing early in the fiscal year. Using 

video teleconferencing technology, the Board electronically brought together an administrative 

judge in Atlanta, Georgia, with the parties, attorneys, and witnesses at Ft. Bragg, North 

Carolina. In addition to producing a mutually satisfactory outcome for the parties, the video telehearing resulted in savings of both time and money. 

Headquarters 

The 10 percent increase in decisions on petitions for review and other appellate jurisdiction 

cases was achieved despite a 12 percent reduction (4 of 34 attorneys) in the legal staff of the 

Office of Appeals Counsel, the headquarters office that processes almost all such cases. 

Clearly, the Board has put into practice the theory that Government agencies must deliver more 

service despite fewer resources. 

During fiscal year 1995, the Board saw the benefits of its earlier streamlining and 

empowerment efforts in two significant ways. First, by empowering headquarters attorneys to 

submit certain proposed decisions to the Board without further review by supervisors, and in 

turn, allowing supervisors to send an expanded range of cases to the Board without further 

review by additional levels of supervisory attorneys, cases were forwarded to the Board more 

quickly and efficiently. The rate at which cases were returned for revision did not increase as a 

result of this change. Second, this process of empowerment provided attorneys and 

supervisors additional time to concentrate on more significant cases. Both the Board and its 

customers were better served. 

The Board also saw benefits from having established both a settlement team and a policy 

team in the Office of Appeals Counsel. Specifically, the office was better able to centralize its 

efforts in deciding issues remaining from the Postal Service's 1992-1993 restructuring. 

Moreover, it was able to address several cases of a policy nature that required extensive 

research and drafting efforts through a more collaborative process, than can normally be used in 

the adjudication of petitions for review. This led to the issuance of cases setting important 

precedent to guide future actions of administrative judges and the Board itself. 

The Board continued its vigorous settlement program at the petition-for-review level. The 

rate of success during the last quarter of the fiscal year hovered around 17 percent of the cases 

where settlement was attempted. While interest in alternative dispute resolution procedures 

continued among Federal agencies generally, reduced budgets, downsizing, and restructuring 

may have impeded settlement efforts in that reinstatement and reassignment may have become 

less feasible than in the past. Nonetheless, the settlement program continues to further the 

interests of both alternative dispute resolution and customer service. Appellants, in particular, 

regularly express their appreciation for a sympathetic ear and a detailed explanation of the legal 
reasons for the outcome of their appeals. Thus, even though settlement efforts do not culminate 

in an agreement in many instances, the parties are at least more satisfied with the adjudicatory 

process as a result of those efforts. 

LITIGATION 

The Board defends its final decisions involving issues of jurisdiction and procedure before the U.S. 

Court of Appeals for the Federal Circuit, its primary reviewing court. The number of cases the Board 

defends in the Federal Circuit expanded dramatically during fiscal year 1995, primarily because of 

appeals involving jurisdictional and timeliness issues filed by U.S. Postal Service employees following 

the Postal Service restructuring. Forty-three percent of the cases litigated by the Board in fiscal year 

1995 were Postal Service restructuring cases. The total number of cases litigated by the Board was 337, 

compared to 200 in fiscal year 1994. This represents a 69 percent increase over the number of cases 

the Board litigated in the previous fiscal year. During the same period, there was a 25 percent reduction 

(3 of 12 attorneys) in the legal staff in the Office of the General Counsel. 

The Board also defends appeals of decisions in cases brought by the Special Counsel and decided 

by the Board under its original jurisdiction authority. All of these cases are appealed to the Federal 

Circuit except Hatch Act cases involving employees of state and local governments, which are heard by 

Federal district courts. Original jurisdiction cases typically involve complex issues such as the extent of 

the Special Counsel's jurisdiction and novel issues involving prohibited personnel practices and Hatch 

Act violations. 

The Board also litigates appeals of decisions in which the Director of OPM petitions for review in the 

Federal Circuit because he has determined, in his discretion, that the Board's determination is erroneous 

and will have a substantial impact on a civil service law, rule, regulation, or policy directive. Other 

litigation includes subpoena enforcement cases and discrimination cases filed in the various Federal 

district courts where the Board is named as a defendant. 

In fiscal year 1995, the Federal Circuit decided King v. Nazelrod, 43 F.3d 663 (Fed. Cir. 1994), 

affirming the Board's decision holding that when an agency disciplines an employee based on a charge 

of criminal misconduct, the agency must prove by preponderant evidence all the elements of the criminal 

charge. The Board found, and the court agreed, that the agency had not proved its charge of theft 

because the agency did not show that the employee acted with the intent to permanently deprive the 

owner of the money she was charged with stealing. 

The Federal Circuit issued two decisions clarifying the Board's jurisdiction over appeals brought by 

excepted service employees. In Forest v. Merit Systems Protection Board, 47 F.3d 409 (Fed. Cir. 

1995), the court held that an excepted service employee's service under a temporary appointment could 

not be considered in determining whether the employee met the jurisdictional prerequisite of two years of 

current, continuous service. In Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed. Cir. 1995), 

the court concluded that the Civil Service Due Process Amendments did not extend appeal rights to an 

employee who was appointed under a statute permitting the Department of Defense to hire employees 

for its dependents schools without regard to the civil service laws. 
The Federal Circuit also published two opinions limiting the Board's authority to hear an employee's 

claims of agency abuse in the adjudicative process. In King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994), 

the court held that in determining whether an agency has complied with an order granting a prevailing 

appellant interim relief, the Board cannot review whether the agency acted in bad faith in determining 

that returning the employee to duty would unduly disrupt operations, but may only consider whether the 

agency made such a determination and, if so, whether the agency has provided the employee with 

appropriate pay and benefits. Similarly, in King v. Reid, 59 F.3d 1215 (Fed. Cir. 1995), the court 

determined that when the Board adjudicates an employee's claim that an agency has not complied with a 

Board decision granting the employee relief, the Board has no authority to hear a claim that 

discrimination was a basis for the agency's failure to comply. 

The U.S. Court of Appeals for the Fourth Circuit issued a decision in Williams v. Merit Systems 

Protection Board, 55 F.3d 917 (4th Cir. 1995), upholding a Board decision finding that a state employee 

violated the Hatch Act by running for partisan political office and that this violation warranted removal 

from state employment. The court agreed with the Board that the employee was covered by the Hatch 

Act because she was principally employed in connection with a federally funded activity, notwithstanding 

that she had no supervisory or discretionary authority over the administration of Federal funds. 

During fiscal year 1995, the Board monitored more than 900 cases in the Federal Circuit involving 

appeals of decisions issued by the Board under its appellate jurisdiction. Although the Department of 

Justice defends the employing agency against whom the appeal is filed, the Board monitors this litigation 

closely. Board activities in connection with monitored litigation include evaluating the case to determine 

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

court's decision in these cases to determine its applicability and impact. 

See Appendix C for summaries of significant court decisions issued during fiscal year 1995.

32 
STUDIES 

THE STATUTORY STUDIES FUNCTION 

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

the significant actions of OPM and conducting studies of the civil service and other merit systems in the 

Executive Branch. These studies and oversight reviews complement the Board's adjudicatory activities 

by reviewing Federal human resources management policies and practices on a systemic basis. In this 

regard, the Board is uniquely situated to provide neutral, independent reviews and assessments as part 

of the ongoing effort to develop and maintain an effective and efficient civil service. 

As confirmed by an extensive customer survey, the Board's studies and oversight reviews provide 

relevant and useful data, analyses, and recommendations to Federal policy officials and others. From 

the Board's first published report in 19 81 to the present, there have been numerous policy changes and 

other actions taken at various levels within Government that apply the Board's recommendations. As an 

example, the Office of Personnel Management recently issued regulations on temporary hiring policy that 

adopted changes recommended in an earlier Board study of temporary employment. Subsequently, 

recommendations of the temporary employment study were incorporated in the Administration's 

proposed civil service reform legislation. 

In another recent example of the impact of Board studies, several Cabinet departments have 

requested that Board staff act as consultants to them on effective methods for preventing sexual 

harassment in their workplaces and for reducing the human and financial costs associated with this 

prohibited personnel practice. These requests recognize the expertise of the studies staff, gathered 

through three internationally recognized studies of sexual harassment in the Federal Government. The 

Department of justice sought the staff's services to conduct an in-depth, departmentwide study on sexual 

harassment that will also solicit employee views on the utility (or lack thereof) of any sexual harassment 

training received. 

With an overall focus on compliance with the merit system principles and freedom from prohibited 

personnel practices, the Board typically solicits specific potential study topics from a wide variety of 

sources in developing its studies and OPM oversight agenda. The Board's studies, usually 

Governmentwide in scope, are conducted through a variety of research methods, including mail and 

telephone surveys, on-site systems reviews, written interrogatories, formal discussions with subjectmatter experts, computer-based data analysis, and reviews of secondary source materials. 

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

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

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

organizations with an interest in public personnel administration. The impact of these studies is 

augmented through an active outreach program consisting of public presentations, on-site and telephone 

consultations in response to requests by Federal agency officials, and papers and articles published in 

the professional literature. 
HIGHLIGHTS OF 1995 REPORTS AND OTHER ACTIVITIES

Leadership for Change: Human Resource Development in the Federal Government. This study 

determined that the resources being devoted to human resource development activities by Federal 

agencies were often inadequate and that the uses for these resources were not prioritized. The Board 

found that in a time of unprecedented change, when programs and priorities of the Federal Government 

require focused use of developmental activities, human resource development should be made part of 

the strategic planning process. Further, developmental activities undertaken by Federal agencies should 

be assessed to ensure their effectiveness in meeting agency needs. 

Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges. This study 

updated the Board's 1980 and 1987 studies of sexual harassment and was based on a Governmentwide 

survey of Federal workers. The Board found that while the Federal workforce is more sensitive to the 

problem of sexual harassment, the problem has by no means disappeared. Nevertheless, the 

Government has made progress in building a greater understanding of the relevant underlying issues 

and sensitivity to how people are treated in the workplace. 

The Rule of Three in Federal Hiring: Boon or Bane? This study analyzed the effect of the 

requirement of law that managers hire from among the top three candidates referred for a position. The 

Board found this legal requirement is not advancing the principle of merit that it was intended to protect. 

Too often, the procedures for meeting the rule of three have created lottery situations with equally 

qualified candidates randomly referred for selection. The study also analyzed the interaction between 

the rule of three and the veterans preference provisions established by law. Here, the Board found the 

conventional wisdom that the interaction of these two laws has worked to significantly reduce managers' 

choices is overstated. 

A report, Fair and Equitable Treatment: A Progress Report on Minority Employment in the Federal 

Government, is anticipated for release in 1996. The report is based on a study of the treatment of 

minorities in the Federal Government. It analyzes differences in the treatment of minorities and 

nonminorities and recommends ways in which these differences might be addressed. 

The Board has continued to seek ways to improve the efficiency with which it gathers data for its 

studies, including direct access to and use of the Central Personnel Data File (CPDF) maintained by the 

Office of Personnel Management. The Board has made increasing use of this tool in conducting its 

research. 

In fiscal year 1995, the Board also initiated use of an issue paper format to supplement its in-depth 

reports. The first was an issue paper, Removing Poor Performers in the Federal Service, that served as 

the basis for testimony presented by the Board to the Civil Service Subcommittee of the House 

Government Reform and Oversight Committee in October 1995. Data from the issue paper was 

constructively used by subcommittee staff and by other witnesses before the subcommittee. Several 

other issue papers were in the planning stages at the end of the fiscal year. These short (1015 page) 

papers will allow for even more timely input on rapidly developing issues. 

See Appendix D for summaries of reports completed during fiscal year 1995.
INFORMATION SERVICES

ON-LINE INFORMATION AND PUBLICATIONS

During fiscal year 1995, the Board increased the amount of information available to the public online through the MSPB Library on the Government Printing Office's Federal Bulletin Board. First 

implemented in July 1994, the bulletin board now contains more than 1,000 files, including final Board 

decisions, weekly summaries of significant Board decisions, reports of Board studies, information 

publications (An Introduction to the MSPB, Questions & Answers About Appeals, and Questions & 

Answers About Whistleblower Appeals), biographies of the Board members and senior staff, press 

releases, and Federal Register notices. Users of the bulletin board logged more than 1,000 downloads 

of MSPB files during the fiscal year. As of December 1, 1995, all files on the Federal Bulletin Board are 

available for FREE downloading. At the end of the fiscal year, the Board was making plans to further 

expand on-line access to its information through the establishment of a World Wide Web site. The site 

was subsequently launched in March 1996. 

The Board also has its own section in the Employee and Labor Relations Forum of the OPM 

Mainstreet electronic bulletin board, which can be accessed by computer modem at 202-606-4800. Files 

placed in this section by OPM include the weekly summaries of Board decisions, certain especially 

significant decisions, and the MSPB information publications. 

The publications made available on-line are available in printed form as well, as are the Board's 

Annual Report to the President and the Congress for Fiscal Year 1994 and the Study of Cases Decided 

in Fiscal Year 1994. Requests for copies of Board decisions should be directed to the MSPB Library at 

202-653-7183 (or FAX 202-653-7130). Copies of reports of merit systems studies and reviews of OPM 

actions may be obtained from the Office of Policy and Evaluation at 202-653-8900. Copies of all other 

publications may be ordered from the Office of the General Counsel's Congressional and Public Affairs 

line, 202-653-6772, extension 1277. 

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

seven days a week. The Federal Bulletin Board can also be accessed via the Internet--telnet to 

fedbbs.access.gpo.gov or go via the Fedworld site on the World Wide Web, http://www.fedworld.gov. 

User assistance is available from GPO from 8 AM to 4 PM Eastern time, Monday through Friday, by 

calling 202-512-1530.

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

Board members, a list of regional and field offices with addresses and telephone numbers, a list of 

reports of merit systems studies, and directions for obtaining additional information. The address of the 

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

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

e-mall address, mspb@mspb.gov.
OUTREACH

In spite of budget-driven reductions in travel, the Board members, headquarters staff, and 

regional/field office staff still were able to participate in almost 140 outreach activities to major 

constituencies during fiscal year 1995-down from about 200 annually in previous years. These activities 

included addressing groups, participating in seminars and conferences, and conducting training 

programs designed to further an understanding of the Board's policies and procedures, developments in 

Board case law, and important issues in Federal personnel law, public administration, and human 

resources management. 

Almost half of the outreach appearances during the fiscal year were made by the regional directors 

and administrative judges. Audiences for these appearances numbered from 10 to 200, with a combined 

total audience of several thousand. Many of the presentations concentrated on the "how to" of 

presenting a case before the Board, and some included mock hearings designed to familiarize 

participants with Board practices and procedures. In addition, regional and field office personnel 

addressed such topics as significant Board and Federal Circuit decisions, the Whistleblower Protection 

Act, reductions in force, interim relief for prevailing appellants, and attorney fees. 

The Board members and headquarters attorneys participated in outreach activities to inform 

agencies, employee unions, private practitioners, and other interested parties about the Board, its 

authorities, jurisdiction, practices, and procedures. Topics addressed included recent developments in 

Board and Federal Circuit case law, the appeals process, alternative dispute resolution, and ethics. In 

addition, a number of the presentations focused on reinventing Government initiatives at the Board. 

The Board participated in the annual Federal Circuit Judicial Conference in June 1995 and 

sponsored a breakout session on potential legislative changes that would affect the Federal personnel 

system and employee appeals process. In August 1995, the Board again participated in the Federal 

Dispute Resolution Conference with EEOC, OPM, the Federal Labor Relations Authority (FLRA), the 

Federal Mediation and Conciliation Service (FMCS), and the Office of Special Counsel. 

The studies staff participated in conferences, seminars, and symposia to discuss human resources 

management issues and to report on the results and implications of the Board's studies and reviews of 

OPM significant actions. In addition to addressing the findings and recommendations of recently issued 

reports, the studies staff discussed studies in progress and potential changes in the Federal personnel 

system as a result of reinventing Government initiatives and the downsizing of the Federal workforce. 

36 
INTERNATIONAL VISITORS PROGRAM 

The Board's international visitors 

program is conducted at Board headquarters by the Board members and staff of the Human 

Resources Management Division. The program is responsive to requests from foreign visitors who wish 

to learn about merit system principles and the Board's practices and procedures. During fiscal year 

1995, the Board hosted 13 visits involving approximately 40 delegates from a number of countries, 

including Bangladesh, China, Hungary, Korea, Lebanon, Taiwan, and Ukraine. The international visitors 

included ministers, chairmen, directors-general, inspector generals, judges, and specialists, many of 

whom expressed particular interest in civil service reform to include restructuring and streamlining 

initiatives. 

ADMINISTRATION 

STREAMLINING

The Board's Annual Report to the President and the Congress for Fiscal Year 1994 summarized the 

reorganization and streamlining initiatives undertaken during that year in response to the Administration's 

National Performance Review (NPR) and the Federal Workforce Restructuring Act of 1994. In fiscal year 

1995, the Board's focus shifted to the new goals established under the second phase of the 

Administration's reinventing Government initiative (REGO II) and the deficit reduction targets of the new 

Congress. 

Early in calendar year 1995, as part of the Administration's deficit reduction plan, agencies were 

given new target budget levels through the year 2000. Because the Board's budget allocations for each 

year were reduced from previous levels, and because about 80 percent of its budget is consumed by 

staff salaries and benefits, the Board determined that the budget it could expect in 2000 would support 

only about 210 employees. 

Under NPR and the Federal Workforce Restructuring Act , MSPB would have been required to 

reduce its staffing from about 320 in 1993 to 275 by 1999. Attrition, assisted by judicious use of early-out 

authority and buyouts, had already reduced the staffing level to about 270 by early 1995-a 16 percent 

reduction from 1993. During this same period, caseload increased by 40 percent. To meet the new 

target staffing level, the Board must find ways to achieve a further reduction of just over 20 percent of its 

1995 staffing level while still handling a caseload estimated to continue at the 1995 level. 

In order to plan for this further reduction in staff-and to conduct the thorough review of agency 

functions called for under REGO II-the Chairman, following discussions with employees and pursuant to 

a recommendation by the MSPB Labor Management Partnership Council, appointed a REGO II Task 

Force to recommend actions, including changes in the structure of MSPB, that would enable the agency 

to continue performing its functions effectively at the reduced budget and staffing levels expected 

through the year 2000. The task force took a functional approach to its review of the agency's 

operations, rather than the office-by-office approach used in the first reengineering effort. In its final 

report to the Chairman, the task force made a number of recommendations. The recommendations, 

although under consideration, had not been implemented by the end of the fiscal year. 
TECHNOLOGY AND PROCEDURAL IMPROVEMENTS

As a first step toward implementation of a Board-wide local area network (LAN), the Information 

Resources Management Division installed a network in the Office of the General Counsel during fiscal 

year 1995. A previously-installed LAN in the Office of Appeals Counsel was scheduled to be joined with 

the new Board-wide LAN in fiscal year 1996, with installation in the remaining headquarters offices to 

follow shortly thereafter. The next phase will be implementation of LANs in the regional and field offices, 

which will then be connected to each office and to Board headquarters through a Wide Area Network. 

This network will enable all MSPB staff to easily share documents, software, and peripherals and will 

permit future improvements in office automation and case tracking. During fiscal year 1995, the Board 

began upgrading personal computers in all MSPB offices in preparation for the installation of additional 

Windows-based software. 

Over 100 reports generated by the automated Case Management System (CMS) were modified to 

reflect changes in Board processes and to improve their usefulness. These modifications permitted the 

publication in the Study of Cases Decided iii Fiscal Year 1994 of CMS reports as they are generated by 

the system, eliminating the time-consuming task of rekeying statistical tables into a word processing 

program prior to publication. In addition, an extensive review of data elements included in CMS was 

conducted during the fiscal year. As a result of this review, many data codes were combined or 

eliminated, thus reducing considerably the amount of information that must be entered by case trackers 

for each case processed. 

In the Office of the Clerk, a number of steps were taken to increase the efficiency of case processing 

and to reduce costs. After consultation with OPM, the office was able to save hundreds of dollars by 

discontinuing the mailing to OPM of copies of all processing letters associated with a case other than the 

final order of the Board. The office also realized savings of several thousand dollars in copying and 

mailing costs by negotiating an informal agreement with the EEOC whereby EEOC attorneys come to 

MSPB to review particularly large records in mixed cases that have been appealed to EEOC. Additional 

savings were achieved through instructions to the MSPB regional and field offices to provide notice to 

parties filing petitions for review that documents already included in the record below should not be filed 

with a PFR. This change resulted in smaller case records, which reduced costs for mailing and copying 

files, as well as the cost of storage space. It also reduces the amount of expenditures by the parties. 

ADMINISTRATIVE ACTIVITIES

Having assumed responsibility for reviews of internal management controls in the 1994 

reorganization, the Financial and Administrative Management Division completed eight management 

control reviews during fiscal year 1995. The reviews covered time and attendance records, warehouse 

operations, verification of payroll data, payroll deductions and withholding, the travel charge card 

program, property management, supply operations, and procurement. In addition, an independent CPA 

firm conducted reviews of the general ledger and the adequacy of the Board's management control 

program. As part of its oversight responsibilities, the Office of the General Counsel contracted with a 

CPA firm to develop methodology and a five-year plan to review the Board's operations. The office is 

also responsible for processing complaints of waste, fraud, and abuse, including those referred from the 

Hotline. 
In support of National Performance Review recommendations and the President's Executive Order 

on Labor Management Relations, the Board established an Agency-Wide Partnership Council that 

includes bargaining unit, non-bargaining unit, senior executive, and middle management representation. 

This council and the Labor-Management Partnership Council have obviated traditional bargaining on 

matters as significant as the Board's flexiplace and alternative work schedule pilot programs. 

Near the end of the fiscal year, the Board established a Career Transition Center (CTC) as one 

means of assisting employees who will be affected by the Board's restructuring and downsizing. In its 

initial phase, the CTC consists of personal resume and SF-171 software and on-line electronic job 

vacancy and job search programs. The Board expects that, as the need arises, the CTC will be 

expanded to include videos, books, and workshops for preparing resumes, cover letters, and 

applications, as well as skills and interests assessments. The CTC is operated under the supervision of 

the Director of Equal Employment Opportunity and was implemented through the volunteer efforts of 

many Board employees. 

FINANCIAL STATEMENT 

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

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

 INCOME

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

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

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

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

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

 EXPENSES

 Direct obligations: 

 Personnel compensation 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 BALANCE............................................................................................... 55 
APPENDIX A –SIGNIFICANT BOARD DECISIONS

APPELLATE JURISDICTION

CASES

This appendix contains summaries of significant appellate jurisdiction cases decided by the Board 

during fiscal year 1995. 

Board decisions are published in West Publishing Company's United States Merit Systems 

Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

Board decisions and weekly summaries of significant decisions are available on the Government 

Printing Office's Federal Bulletin Board. Dial 202-512-1387 via computer modem, and go to the MSPB 

LIBRARY. Assistance is available from GPO by calling 202-512-1530. Certain significant Board 

decisions are also available on the OPM Mainstreet BBS, 202-6064800. 

POSTAL SERVICE RESTRUCTURING

Bissett z,. U. S. Postal Service, 66 M.S.P.R. 631 (1995)

The Board held that where an appellant had access to as much information as the agency 

concerning its restructuring, a claim that his retirement is involuntary because the agency did not provide 

sufficient information Jails. Where no action to affect the appellant's grade, pay, or tenure was taken 

before his retirement, despite the abolishment of his position, he was not released from his competitive 

level or affected by a RIF; thus, the agency's failure to provide RIF appeal rights does not cause his 

retirement to be involuntary. 

Jones v. U.S. Postal Service, 65 M.S.P.R. 306 (1994)

Employees who retired during the restructuring without having been demoted were not entitled to 

notice of an appeal right from that action unless they put the agency on notice at that time or later that 

they considered their retirement involuntary. At the time of the restructuring, there was no law 

establishing that the restructuring was actually a RIF situation. Where the agency is not required to give 

notice of appeal rights, the appellant must exercise diligence in discovering and pursuing any right of 

appeal he may have. 

Sink v. U.S. Postal Service, 65 M.S.P.R. 628 (1994)

Unless it has compelling reasons, an agency must restore an employee who has suffered an 

unjustified personnel action to the status quo ante. The abolishment of the appellant's former job is a 

compelling reason for not returning him to that position. With respect to the Postal Service restructuring, 

the Board held that the decision to run a RIF rather than return the appellant as nearly as possible to the 

status quo ante is not compliance with its order. It ruled that, to be in compliance, the agency must 

either return the appellant to his former position or issue him a specific notice of RIF. 
Kelly v. U.S. Postal Service, 68 M.S.P.R. 565 (1995)

In petitions for review following reversals on the merits of demotions effected during the 

restructuring, as in petitions for enforcement, it is proper to treat an allegation on the merits of the 

agency's compliance RIF as a new RIF appeal and not as a compliance action. The Board extended a 

30-day period to the appellant in which he may file such an appeal. 

WHISTLEBLOWER PROTECTION ACT 

Van Ee v. Environmental Protection Agency, 64 M.S.P.R. 693 (1994)

That the appellant's statements constituted expressions of his opinion did not remove them from the 

status of protected disclosures if he reasonably believed them, since the element of opinion is always 

present in such a disclosure. That they were made in the context of a settlement discussion also did not 

remove them from the protection of 5 USC §2302(b)(8). First Amendment arguments and prohibited 

personnel practice claims not based on (b)(8) cannot be considered in the context of an IRA appeal. 

Sirgo v. Department of Justice, 66 M.S.P.R. 261 (1994)

Disclosures to co-workers and an intent to disclose to agency officials are both protected by 5 USC 

§2302(b)(8) as long as they meet the reasonable belief test. Where an appellant who resigned in the 

face of a threat to terminate his employment during his probationary period requests not just abatement 

of the threat (i.e., cancellation of the proposed termination), but reinstatement and back pay, he must 

show that a reasonable person in his position would have resigned under those circumstances. 

Ward v. Department of the Army, 67 M.S.P.R. 482 (1995)

The disclosure of matters that are only potential violations may be protected where they evidence a 

reasonable belief of wrongdoing as set forth in 5 USC § 2302(b)(8). Here, because the potential 

wrongdoing disclosed under such circumstances was "real and immediate," the Board found that the 

appellant had the requisite reasonable belief. 

Mitchell v. Department of the Treasury, 68 M.S.P.R. 504 (1995)

That the appellant may have raised her claims in an unfair labor practice (ULP) charge did not in and 

of itself render them unprotected by 5 USC §2302(b)(8). Rather, if the alleged facts underlying the ULP 

charge also would constitute independent violations of (b)(8), the employee discloses the facts through 

additional channels in such a way as to advance her whistleblowing claim, and she suffers personnel 

actions she alleges constitute whistleblower retaliation, she may avail herself of the IRA procedure. If 

the facts disclosed evidence only a ULP, however, and not another violation of law, rule, or regulation, or 

other basis under (b)(8), it is not the type of disclosure intended to be protected by that section. 

Paul v. Department of Agriculture, 66 M.S.P.R. 643 (1995)

Reassignment and nonselections for vacancies are personnel actions. The denial of certification as 

a mineral examiner is not a personnel action; nor are the tortious acts of defamation, interference in the 

appellant's employment relations, placement of the appellant in a false light, or intentional infliction of 

mental distress. 

ADVERSE ACTIONS 
Barresi, et al., v. U.S. Postal Service, 65 M.S.P.R. 656 (1994)

In order to indefinitely suspend an employee under the crime provision of 5 U.S.C. 7513, an agency 

must have reasonable cause to believe the employee has committed a crime for which a sentence of 

imprisonment may be imposed. Evidence of an employee's arrest, or evidence of an employee's arrest 

and conviction, are insufficient to meet this standard. The same is true for media reports, without some 

form of independent verification, and to the extent that Martin v. Treasury, 12 M.S.P.R. 12 (1982), 

suggests to the contrary, it is modified. Because of the unique nature of the crime provision on which 

indefinite suspensions are based, the critical factor in the reasonable cause determination is the 

evidence the proposing and deciding officials have before them at the time they act. It would deny due 

process to sustain an indefinite suspension based on evidence the agency did not have before it when it 

made its reasonable cause determination. 

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

Where an AWOL charge is based on the failure to report for a directed reassignment, the agency 

must prove that its reassignment decision was bona fide and based on legitimate management reasons. 

Here, that rule was applied in the context of the agency's order that the appellant report to a lower grade 

job as part of its nationwide restructuring. As was true of all such similar cases, the placement action 

was later reversed because the agency failed to follow reduction-in-force procedures in making it. Not 

having reported for duty, the appellant was removed for AWOL prior to that adjudication. In the context 

of this adverse action appeal of the removal, the Board examined its relevant case law and found that its 

review of directed reassignments is intended to assure that they are not used for illegitimate reasons, 

and is directed to the reasons for the action, not the means by which it was effected. Thus, a demotion 

like this one is legitimate under this test ' and where the appellant does not obey the order to report, he is 

properly subject to removal for AWOL. The Board also clarified its law and held that an employee is 

privileged to disobey an order only where compliance would cause him irreparable harm. 

Wilkinson v. Department of the Air Force, 68 M.S.P.R. 4 (1995)

This decision extended the rule of Fleming v. USPS to agencies other than the Postal Service, 

allowing employees to be removed for failure to follow leave-requesting procedures despite the approval 

of their leave. 

DRUG-RELATED ISSUES 

Lazenby v. Department of the Air Force, 66 M.S.P.R. 514 (1995)

Under Executive Order 12564, agencies "shall initiate action to discipline" an illegal drug user except 

for one who voluntarily identifies himself and agrees to testing, obtains treatment, and thereafter abstains 

from using illegal drugs. Further, the agency must initiate a removal action where the employee refuses 

to obtain treatment or "thereafter" uses such drugs. In this context, the Board found that the word 

"thereafter" means the period beginning immediately after a finding of drug use, so that the fact that the 

appellant's relapse, which led to the removal, occurred in the early stage of her treatment, even for a 

drug as addictive as cocaine, does not lessen the seriousness of the offense. 

Garrison v. Department of Justice, 67 M.S.P.R. 154 (1995)
In deciding whether an agency's reasonable suspicion determination under its drug testing program 

was proper, the relevant inquiry is whether it was sufficient at the time it was made. It should not be 

evaluated on facts that did not come to light until after that time. 

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

Section 512 of the Americans With Disabilities Act amends the Rehabilitation Act to provide that the 

term "individual with a disability" does not include "an individual who is currently engaging in the illegal 

use of drugs, when a covered entity acts on the basis of such use." Whether use of illegal drugs is 

"current" is determined as of the date of the notice of proposed adverse action, so an appellant's entry 

into treatment after that date comes too late to protect him under the Act. 

INTERIM RELIEF 

Russell v. Department of Justice, 68 M.S.P.R. 337 (1995)

Where the appellant is the only party to file a petition for review of an initial decision ordering interim 

relief, the agency, upon order, must submit proof of compliance. This is the first case in which the Board, 

under its recent regulatory amendment, retained jurisdiction over the issue of interim relief to assure 

compliance, despite its remand of the appeal on the merits to the field office. 

MISCELLANEOUS 

Kuykendall v. Department of Veterans Affairs, 68 M.S.P.R. 314 (1995)

A status quo ante analysis is not per se applicable in enforcing settlement agreements; nor is it 

applicable simply because the appellant asserts that the agency has retaliated against and harassed her. 

Allegations of harassment and retaliation are, however, relevant to a determination of whether the 

agency complied in good faith with a settlement's reinstatement term, even though the parties' 

agreement does not specifically prohibit reprisal upon reinstatement. To establish such a breach the 

appellant must show that the agency's "proven ... actions, under the totality of the circumstances, 

amounted to an unjustified and substantial deprivation of her rights" as the incumbent of her position. It 

is not necessary, however, to establish a prohibited personnel practice to establish a breach. 

Groshans v. Department of the Navy, 67 M.S.P.R. 629 (1995)

The Board held that a conversation about a request for a security presence at a hearing concerns a 

procedural security matter, which need not be raised in writing, and not the merits of the case. It further 

found that the administrative judge may require such a presence on his own initiative and that the failure 

to disclose the circumstances surrounding a request for a security presence does not violate the 

appellant's rights. 
APPENDIX B -SIGNIFICANT BOARD DECISIONS ORIGINAL 

JURISDICTION CASES 

This appendix contains summaries of significant original jurisdiction cases decided by the Board 

during fiscal year 1995. 

Board decisions are published in West Publishing Company's United States Merit Systems 

Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

Board decisions and weekly summaries of significant decisions are available on the Government 

Printing Office's Federal Bulletin Board. Dial 202-512-1387 via computer modem, and go to the MSPB 

LIBRARY. Assistance is available from GPO by calling 202-512-1530. Certain significant Board 

decisions are also avail- able on the OPM Mainstreet BBS, 202-606-4800. 

SPECIAL COUNSEL DISCIPLINARY ACTIONS (NON-HATCH ACT) 

Special Counsel v. Santella and Jech, 65 M.S.P.R. 452 (1994)The applicable standard under the 

Whistleblower Protection Act in Special Counsel disciplinary actions involving reprisal for whistleblowing 

is whether the protected disclosure was a significant factor in the alleged retaliation. In order to meet the 

significant factor test, the Special Counsel must demonstrate that the protected disclosure played an 

important role in the allegedly retaliatory action and that there was an improper motivation for the action. 

The test is not met if the official would have taken the same action in the absence of the protected 

disclosure. 

SPECIAL COUNSEL STAY REQUESTS

Special Counsel v Department of the Treasury, 

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

Placement on administrative leave is a personnel action that the Board may stay under the 

Whistleblower Protection Act because it constitutes a significant change in duties or responsibilities 

which is inconsistent with the employee's salary or grade level. 

REGULATION REVIEWS

Senior Executives Association v. Office of Personnel Management, 67 M.S.P.R. 643 (1995)

The regulation concerning detailing career Senior Executive Service (SES) employees during the 

120-day period following the appointment of a new agency head or noncareer supervisor does not 

violate the statutory moratorium on involuntarily reassigning career SES employees during that period or 

require the commission of a prohibited personnel practice. The regulation providing that career SES 

employees could not earn credit hours does not violate the statute governing flexible work schedules or 

require the commission of a prohibited personnel practice. The Senior Executive Association is an 

"interested person" entitled to seek review of regulations applicable to its members. 
APPENDIX C – SIGNIFICANT COURT DECISIONS 

Significant decisions issued by the U.S. Court of Appeals for the Federal Circuit on review of final 

Board decisions during fiscal year 1995 included the following: 

AFFIRMATIVE DEFENSES 

Procedural Error 

Diaz v. Department of the Air Force, 63 F.3d 1107 (Fed. Cir. 1995) 

An agency's violation of a statutory procedural requirement does not necessarily invalidate the 

agency action, especially where Congress has not provided any consequences for such procedural 

violation. The fact that the agency issued its decision to remove the employee more than 30 days after 

the notice period expired did not mandate reversal of the removal when the employee did not show that 

this procedural error affected the outcome of the agency's decision. 

Reprisal for Whistleblowing

Watson v. Department of Justice, 64 F.3d 1524 (Fed. Cir. 1995)

When the facts supporting an agency's disciplinary action against an employee are intertwined with 

facts disclosed by the employee in a protected whistleblowing disclosure, the agency must prove by 

clear and convincing evidence that it would have taken the same action absent the disclosure, but not 

that it eventually would have discovered the content of the disclosures from another source. 

APPEALABLE ACTIONS 

Loss of Security Clearance 

Drumheller v. Department of the Army, 49 F.3d 1566 (Fed. Cir. 1995) 

In reviewing a removal action based on the revocation of a security clearance, the Board only has 

jurisdiction to consider whether the agency provided the employee with the procedural protections 

required by statute, regulation, and the Constitution. The Board may not review the substance of the 

underlying security clearance determination. 

Misuse of Government-Owned Vehicle 

Chufo v. Department of the Interior, 45 F.3d 419 (Fed. Cir. 1995)

A car that was rented by an employee using a Government-issued credit card while on an official 

business trip was not a Government-owned vehicle because the car was neither owned nor leased by 

the Government, and the employee was not properly charged with misuse of a Government-owned 

vehicle when he used the car for personal business. 
Kimm v. Department of the Treasury, 61 F.3d 888 (Fed. Cir. 1995)

In order to sustain a charge of misuse of a Government-owned vehicle, the agency must prove 

either that the employee had actual knowledge that the use would be characterized as nonofficial or that 

the employee acted in reckless disregard as to whether the use was for nonofficial purposes. The 

agency did not show the requisite intent to support its charge of misuse of a Government-owned vehicle 

where the employee used the vehicle to transport his child to and from day care on his way to and from 

work while his wife was ill. 

Theft

Chauvin z?. Department of the Navy, 38 F.3d 563 (Fed. Cir. 1994)

By charging the appellant with unauthorized possession and attempted removal of Government 

property, the agency charged him with two separate charges, rather than one charge with two elements, 

because the charge stated two separate acts of misconduct that are not dependent upon each other. 

The court found that the agency did not prove its charge of attempted removal of Government property 

because the agency did not show that the appellant acted with the requisite intent. 

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

When an agency charges an employee with a criminal offense, the agency must prove all the 

elements associated with the crime. The agency did not prove its charge of theft of an inmate's money 

because it did not prove that the employee acted with the intent to permanently deprive the owner of 

possession of the money. 

ATTORNEY FEES

Irvin v. Small Business Administration, 45 F.3d 417 (Fed. Cir. 1995)

The employee was not the prevailing party entitled to an award of attorney fees where in her 

amended appeal of her removal she sought reinstatement, a promotion, a voluntary resignation, and 

back pay, but she settled her appeal for a voluntary resignation and clean personnel record. In order to 

be a prevailing party, the employee must obtain all, or a significant portion of, the relief sought in filing 

the appeal. 

BOARD PROCEDURES AND TIMELINESS

Interim Relief 

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

In determining whether an agency has complied with an interim relief order, the Board has no 

jurisdiction to review an agency's decision that the employee's return or presence in the workplace would 

be unduly disruptive. The Board's authority is limited to determining whether an undue disruption 

determination has been made and whether the agency has provided the employee with appropriate pay, 

benefits, and compensation. 
Timeliness 

Pyles v. Merit Systems Protection Board, 45 F.3d 411 (Fed. Cir. 1995)

When an appellant presents evidence that she suffers from a permanent or progressive medical 

condition, the condition will be assumed to continue after the date of the diagnosis absent evidence to 

the contrary, and the Board abuses its discretion by finding that tire condition did not continue. 

ENFORCEMENT OF BOARD ORDERS

Discrimination Claims

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

The Board has jurisdiction to determine whether an agency has violated a Board order or a 

settlement agreement that has been entered into the record; however, the Board may not decide a claim 

of discrimination that is alleged to be a basis in whole or in part for the agency's acts of noncompliance. 

An allegation of noncompliance with a Board order is not an appealable action to which a claim of 

discrimination can be appended to create a mixed case. 

EVIDENCE

Conflicting Evidence

Holmes v. Department of Veterans Affairs, 58 F.3d 628 (Fed. Cir. 1995)

The Board erred by finding that the agency complied with the terms of the settlement agreement 

without addressing and resolving the conflicting evidence in the record concerning the agency's 

compliance. 

Recanted Admissions

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

(Fed. Cir. 1995)

An adverse action will not be sustained when the only proof that the misconduct occurred is a 

recanted admission. However, where there is other evidence that the misconduct occurred, the agency 

may use a recanted admission along with other evidence to support the other aspects of its charge. 
INDIVIDUAL RIGHT OF ACTION

Protected Disclosures

Horton v. Department of the Navy, 66 F.3d 279 (Fed. Cir. 1995)

A disclosure to the person who is the subject of the disclosure is generally not protected 

whistleblowing; the purpose of the Whistleblower Protection Act is to encourage disclosure of 

wrongdoing to persons who are in a position to remedy it. A disclosure that recites violations of rules, 

regulations, or managerial responsibility, which on their face are covered by 5 U.S.C. §2302(b)(8), are 

protected disclosures absent evidence that the whistleblower has no reasonable belief that a violation of 

law has occurred. A protected disclosure cannot be a contributing factor to a personnel action that was 

proposed before the disclosure was made. 

JUDICIAL REVIEW

Non-final Board Orders 

Haines v. Merit Systems Protection Board, 44 F.3d 998 (Fed. Cir. 1995)

A letter by the Clerk of the Board denying an appellant's request to reopen a final Board decision is 

not a final Board order that may be appealed to the U.S. Court of Appeals for the Federal Circuit. 

Scope of Review

Anthony v. Office of Personnel Management, 58 F.3d 620 (Fed. Cir. 1995)

The scope of review of the Board's decision in a disability retirement case under the Federal 

Employees Retirement System is the same as the scope of review in disability retirement cases under 

the Civil Service Retirement System. Judicial review is limited to determining whether there has been a 

substantial departure from important procedural rights, a misconstruction of the governing legislation, or 

some like error going to the heart of the administrative determination. The court may not review the 

Board's findings of fact. 

JURISDICTION

Actions Taken Pursuant to a Last Chance Settlement Agreement 

Briscoe v. Department of Veterans Affairs, 55 F.3d 1571 (Fed. Cir. 1995)

In order to determine whether an employee has raised a non-frivolous allegation that she was 

incompetent to enter into a last chance agreement, the Board may properly request sufficient evidence to 

determine if, in the first instance, there is any support for her mere allegation. 

Link v. Department of the Treasury, 51 F.3d 1577 (Fed. Cir. 1995)

An agency breaches a last chance settlement agreement when it fails to comply with a provision in a 

way that was material to the agreement. The employee need not show that the agency acted in bad faith 

or arbitrarily. When a material breach is shown, the Board may not enforce any waiver of appeal rights 

contained in the agreement. 
Excepted Service Employees 

Forest v. Merit Systems Protection Board, 47 F.3d 409 (Fed. Cir. 1995)

To be entitled to file an appeal, an employee in the excepted service must serve two years of current 

continuous service in the same or similar position under a permanent appointment. An employee cannot 

tack service under a temporary appointment onto his service under a permanent appointment in order to 

meet this two-year period. 

Involuntary Resignation 

Braun v. Department of Veterans Affairs, 50 F.3d 1005 (Fed. Cir. 1995)

An employee need only present a nonfrivolous allegation that his resignation was coerced, not prove 

his claim by preponderant evidence, in order to warrant a hearing on that issue. 

Suspension of Fourteen Days or Less 

Jennings v. Merit Systems Protection Board, 59 F.3d 159 (Fed. Cir. 1995)

Two fourteen-day suspensions imposed for different acts of misconduct, although served 

consecutively, could not be aggregated to constitute a single twenty-eight-day suspension in order to 

establish Board jurisdiction. 

Temporary Employees 

Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed. Cir. 1995)

The Civil Service Due Process Amendments did not extend appeal rights to an employee who was 

appointed pursuant to a statute that allowed the Department of Defense to appoint employees for its 

dependents schools without regard to the civil service laws. 

RETIREMENT BENEFITS

Computation of Length of Service 

Begley v. Office of Personnel Management, 60 F.3d 804 (Fed. Cir. 1995)

The Office of Personnel Management's method of calculating length of service assuming that each 

calendar month has thirty days, and that each year has 360 days-reasonably implements the statute that 

sets out the calculation of length of service for retirement eligibility under the Civil Service Retirement 

System. 
Election Not to Make Deposit 

Collins v. Office of Personnel Management, 45 F.3d 1569 (Fed. Cir. 1995)

An employee is bound by his written election not to make retirement contributions to cover his 

military service, absent a showing of mental incompetence, duress, or fraud. 

Former Spouses 

Davenport v. Office of Personnel Management, 62 F.3d 1384 (Fed. Cir. 1995)

In interpreting a qualified domestic relations order providing a Federal employee's former spouse an 

interest in the employee's retirement benefits, the Office of Personnel Management may look to the 

divorce decree to insure that the retirement benefits are apportioned in accordance with the intent of the 

order. 

Holder v. Office of Personnel Management, 47 F.3d 412 (Fed. Cir. 1995)

A Federal employee's former spouse does not meet the statutory requirements for a survivor annuity 

under the Civil Service Retirement Spouse Equity Act if she did not apply for benefits by the statutory 

deadline, May 7, 1989. An employee's election upon retirement of a survivor annuity for his spouse 

extinguishes upon their subsequent divorce. 

Vallee v. Office of Personnel Management, 58 F.3d 613 (Fed. Cir. 1995)

A Federal employee's failure to elect a survivor annuity for his former wife after their divorce as 

required by the Civil Service Retirement Spouse Equity Act was excused by the Office of Personnel 

Management's failure to notify the employee that he must make such an election where the employee 

elected a survivor annuity in favor of his then wife at the time of his retirement and he declined to have 

his annuity restored to its full value after the divorce. 

Indefinite Service 

Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995)

Indefinite appointments in the excepted service may properly be interpreted as being "temporary or 

intermittent," and thus do not constitute covered service for establishing entitlement to a civil service 

retirement annuity. 

Recomputed Annuity

Pugach v. Office of Personnel Management, 46 F.3d 1081 (Fed. Cir. 1995)

In order to become entitled to have his retirement annuity recomputed under 5 U.S.C. §8344, a 

Federal employee who has retired and subsequently been reemployed by the Federal Government must 

complete five years of continuous service. 
Spousal Consent to a Lump Sum Annuity 

Carpisassi v. Office of Personnel Management, 46 F.3d 1094 (Fed. Cir. 1995)

A retired Federal employee may not elect a lump sum annuity unless the employee timely files a 

notice that his spouse consents to the lump sum. OPM's failure to respond to an employee's request for 

an extension of time and misinformation as to the applicable deadline did not justify waiver of this 

requirement because the employee did not obtain his wife's consent by the time the deadline expired. 

50 
APPENDIX D- MERIT SYSTEMS STUDIES AND REVIEWS OF OPM

SIGNIFICANT ACTIONS 

Leadership for Change: Human Resource Development in the Federal Government (July 1995) - 

This report covers the Board's study of the employee training and development programs that constitute 

human resource development (HRD) in the Federal Government. It concludes that while the level of 

employee satisfaction with specific programs and presentations is fairly high, the level of satisfaction with 

the overall resources for HRD is rather low. The Board finds that the level of funding available for HRD 

is declining under increasing budget pressure. Ironically, this same pressure is requiring the retraining of 

the workforce to work more efficiently and effectively in reengineered organizations. The Board also 

finds that the HRD function needs to be integrated into the strategic planning and evaluation processes 

to ensure that organizations' developmental priorities are being met. Current HRD staffs must be 

engaged more in the strategic planning process rather than relegated to the role of coordinating specific 

training courses and compiling statistics on the completion of such courses. Further, the Board finds the 

Office of Personnel Management needs to use its role as the Government's lead human resources 

agency to educate Congress, the Administration, and individual agencies on the need to allot resources 

to develop the organizations of the future. 

Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges (October 

1995) - This report presents the results of a Governmentwide survey of Federal workers who provided 

data on their experiences with sexual harassment and the effects it had on them, as well as information 

on their attitudes and beliefs about relationships in the workplace. The survey was the centerpiece of a 

study undertaken to update the Board's 1980 and 1987 studies of this issue. 

The report includes a review of judicial developments and the initiatives agencies described to 

prevent or eliminate sexual harassment in their organizations. The Board found that while the Federal 

workforce is more sensitive to the problem of sexual harassment, the problem has by no means 

disappeared. Nevertheless, the Government has made progress in building a greater understanding of 

the relevant underlying issues and sensitivity to how people are treated in the workplace. 

The Rule of Three in Federal Hiring: Boon or Bane? (December 1995) - This report analyzes the 

effect of the rule of three on competitive Federal hiring. It finds that the rule of three, which requires 

managers to hire from among the top three candidates referred to them by an examining office, does not 

advance merit hiring. Too often, this rule requires the use of random number tables to determine the 

order in which otherwise equal candidates will be listed, essentially turning the referral stage into a 

lottery. The report also challenges conventional wisdom by finding that the rule of three often does not 

limit managers' choices in hiring because in many instances there are no more than three qualified 

candidates for each job vacancy. The Board report concludes that the current rule should be replaced 

by one that better takes into account the supply of applicants and that gives managers a greater role in 

selecting among candidates. 

The report also analyzes the interaction of veterans preference laws with the rule of three and finds 

that the interaction of these two laws varies by the kind of hiring procedure used. Further, while 

proportionately more veterans are referred for hiring through the traditional process of hiring from 

standing inventories of candidates ("register hiring"), proportionately greater numbers of veterans are 

actually hired through a hiring process where applicants apply for a specific job vacancy ("case 

examining"). The report also casts doubt on another conventional belief-that the presence of candidates 

with veterans preference often prevents managers from hiring preferred candidates. The report finds 

instead that the interaction of the rule of three with veterans preference laws has not, in fact, significantly 
reduced management choices. In other words, while the rule of three can have a negative impact on the 

competitive hiring process, veterans preference laws are not the cause of that negative impact. 

CUSTOMER SERVICE STANDARDS

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

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

missions are authorized in the Civil Service Reform Act of 1978.

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

which they are entitled and to assure the public as a whole that we are ably promoting and protecting the 

Federal merit systems.

MISSION I - Adjudication of Appeals

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

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

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

4. We will facilitate the settlement of appeals. 

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

regulation. 

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

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

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

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

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

merit systems and the significant actions of the U.S. Office of Personnel Management; perform sound, 

objective analysis; and where warranted, develop practical recommendations for improvement. 

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

make these reports available to all interested individuals and parties. 

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

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

standards. However, if at any time, you have comments or suggestions concerning our service, 

we invite you to provide feedback to our Chairman, Mr. Ben Erdreich, through the Clerk of the 
Board, at 1120 Vermont Avenue, NW, Washington, DC 20419, telephone (202) 653-7200, FAX 

number (202) 653-7130. Electronic mail may be sent over the Internet to mspb@mspb.gov.