U.S. Merit Systems Protection Board 

Washington, D.C. 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Dear Sirs: 

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

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

fiscal year 1999, including the Federal employee appeals and other cases decided by the Board. 

The Board and its regional and field offices closed 9,806 cases during fiscal year 1999. The 

Board's administrative judges decided 7,669 appeals, stay requests, and addendum cases. The 3-member 

Board decided 2,031 cases under its appellate jurisdiction, principally petitions for review (PFRs) of its 

judges' initial decisions. At headquarters, the Administrative Law Judge issued initial decisions in 12 

cases arising under the Board's original jurisdiction, and the Board completed action on 94 original 

jurisdiction cases. 

The average time to process appeals and addendum cases in the regional and field offices was 

100 days. Approximately 20 percent of initial decisions by judges result in a PFR to the Board, where the 

average processing time was 222 days. This means that, on average, a case processed through both levels 

of the Board was completed in just under 11 months. Timely processing is important because most 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 403 final Board decisions reviewed by the court in fiscal year 1999, 93 percent were unchanged by the 

court's decisions. 

The Board also has a statutory responsibility to conduct studies of the merit systems and to 

review the significant actions of OPM. In fiscal year 1999, the Board's studies function included two 

major reports on basic personnel issues: hiring under a decentralized civil service and dealing with poor 

performers. 

Respectfully submitted, 

Ben L. Erdreich 

Chairman 

Beth S. Slavet 

Vice Chairman 

Susanne T. Marshall

Member
Table of Contents 

Board Mission and Jurisdiction 

Board Members 

Preparing MSPB for the 21st Century 

Board Organization 

Regional and Field Office Jurisdictions 

Fiscal year 1999 Case Processing – Statistical Highlights 

Adjudication 

Litigation 

Studies 

Administration 

For Additional Information 

Customer Service Satandards
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 and other 

matters under the Board's 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 

Agency personnel 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 discrimination prohibited by the Civil Rights Act of 1964 and other 

anti-discrimination laws is raised in connection with an appealable personnel 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 a Special Panel for a final decision. (A Special Panel is convened when 

needed and 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—including 

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

benefits, awards, education, or training—that are not normally appealable to the Board may 

be appealed to the Board under certain circumstances. Such actions 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. 

In recent years, the Board's jurisdiction has been extended. Under the 1994 

Uniformed Services Employment and Reemployment Rights Act (USERRA), the Board has 

jurisdiction over complaints alleging a violation of Chapter 43 of Title 38, relating to the 

employment and reemployment rights of persons who have served in the uniformed 

services. This Act also prohibits discrimination against individuals because of their service in 

a uniformed service. Early in fiscal year 1999, USERRA was amended (Public Law 105-368) 

to extend the Board's jurisdiction to claims that accrued under the predecesor veterans' 

reemployment rights (VRR) statute prior to the 1994 effective date of USERRA. 

Also during fiscal year 1999, Congress extended the Board's jurisdiction through the 

enactment of the Veterans' Employment Opportunities Act of 1998 (Public Law 105339). 

Under this Act, a preference eligible employee may file an appeal with MSPB based on a 

violation of any law or regulation relating to veterans' preference, after first filing a 

complaint with the Department of Labor (DOL) and allowing DOL 60 days to try to resolve 

the matter. In addition, a violation of veterans' preference is now a prohibited personnel 

practice, allowing the Special Counsel to petition the Board to order disciplinary action 

against an employee who commits such a violation. 

The 1996 Presidential and Executive Office Accountability Act authorizes appeals to 

MSPB by employees in the Executive Office of the President based on violations of a number 

of workplace laws, including the Family and Medical Leave Act, Fair Labor Standards Act, 

Employee Polygraph Protection Act, and Worker Adjustment and Retraining Notification Act, 

as well as USERRA.

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 half of all appeals to the Board, the 

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

service and preference eligible employees in the excepted service 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 an OPM regulation or of an agency's implementation of an OPM 

regulation; 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. The 

exceptions are: 

• Board decisions in mixed cases may be appealed to an appropriate U.S. district court. 

(A Special Panel decision also may be appealed to an 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. 
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 and is a 

member of the Federal Circuit and District of Columbia 

bar associations. 

MEMBER 

SUSANNE T. MARSHALL was sworn in as 

Member of the Board on November 17, 1997, following 

her nomination by President Clinton and confirmation by 

the Senate. Her term appointment expires March 1, 2004. 

She served on the staff of the Committee on 

Governmental Affairs of the United States Senate, with 

jurisdiction over all Federal employee personnel issues, 

from December 1985 until her appointment. During that 

time, she served three distinguished members of the 

SenateChairman/Ranking Republican William V. Roth, Jr., 

of Delaware (1985-1995), Chairman Ted Stevens of 

Alaska (19951996), and Chairman Fred Thompson of 

Tennessee (1997). Before that, she held positions in the 

House of Representatives as Republican Staff Assistant to 

the Committee on Government Operations (1983-1985) 

and as Legislative Assistant on the staff of a Member from 

Georgia (1981-1982). She has also worked in the private 

sector while living in Georgia (1976-1981) and for a trade 

association in Washington, DC (1972-1976). She 

attended the University of Maryland in Munich, Germany, 

and the American University. 
PREPARING MSPB FOR THE 21ST CENTURY 

Reflections by Chairman Ben L. Erdreich 

It seems appropriate to add a personal note to the Board's 1999 Annual Report on the 

state of the Merit Systems Protection Board (MSPB) as we begin a new century. This will be 

my last report as I reach the culmination of my 7-year term as the agency's Chairman. MSPB 

looks very different than it did in 1993 when I began my tenure. As the new century begins, I 

look back with pride at the changes in the Board and look forward with confidence to a Board 

prepared to carry out its missions of protecting the Federal merit systems through fair and 

impartial adjudication of personnel matters and through studies designed to ensure that 

human resources are well managed. 

Although the Board remains committed to timely processing of the approximately 

10,000 cases it receives a year and issuing fair and impartial decisions, MSPB has changed 

almost every aspect of its operations. We have streamlined our procedures, rewritten 

regulations to communicate more clearly, and reorganized to intensify the focus on case 

adjudication. MSPB has reduced the number of its offices, retrained administrative employees 

to perform paralegal functions, and contracted out administrative operations like payroll and 

personnel. Today, MSPB, with 250 employees, is significantly smaller, at 77 percent of its 

1993 staffing (323 employees). Among the Board's new priorities are efficiency and 

heightened customer service. Performance and accountability matter at MSPB. 

The new reality of Government is information technology. Initiatives begun early in my 

term have moved the Board in the direction of a paperless office, including electronic case 

files and the filing of appeal materials on-line via computer. Our goal is to allow our clientele 

to do business with the Board on a 7-day a week, 24-hour a day basis. Through information 

technology, MSPB has been able to alter its operations and improve delivery of its services. 

We have revolutionized the hearing process through video conferencing, and saved time and 

money for the Board, appellants, and agencies. Our web site—which received over 373,000 

hits in FY 1999—gives everyone immediate access to everything from MSPB decisions and 

studies of civil service issues to Board regulations and forms to file appeals. 

Since 1993, MSPB has increasingly focused on review of merits issues. We now 

dismiss fewer appeals as untimely. Regulations have been changed to extend filing times for 

appeals and attorney fee requests and to eliminate restrictive requirements on filing. We have 

implemented a policy permitting judges to issue oral decisions from the bench in certain 

cases to provide our customer a more expeditious delivery. 

Hard work by our staff in the regions and at headquarters has made our decisionmaking pace stand out among adjudicators. Our initial decisions were rendered, on average, 

in 100 days for FY 1999, which is close to our FY 1993-1998 average of 95 days. At 

headquarters, the average age of a case pending before the Board was 102 days. We have 

reduced our cases pending over a year from almost 100 and are approaching "zero." 
During the past seven years, MSPB has strengthened its already successful alternative 

dispute resolution program. Although settlement of 50 percent of the initial appeals continues 

to be an important mainstay of the Board's ADR efforts, the Board has also focused on ADR at 

earlier and later stages of an employment dispute. MSPB has changed its procedures to allow 

parties to a dispute to agree to additional time to pursue settlement both before and after an 

appeal has been filed. In 1993, we implemented a PFR settlement program—extending the 

ADR program to cases decided by the three Board members. Most recently, the Board 

focused on early intervention. During the report year, we initiated a formal training program 

to help employees and organizations resolve disputes while still at the agency level. Under 

this program, trained and certified dispute resolution specialists at the agencies will intercept 

employee disputes before appeals are filed with the Board. 

With its new look, new resources, and renewed focus, the Board is ready to play its 

part in the new century to ensure that the Federal workplace is managed according to merit 

principles. These are more than just another set of legal requirements; at the heart of the 

merit system are public service values: individual accountability, non-partisanship, meritbased employment, fairness, and equity. MSPB was created not simply as a superior form of 

dispute resolution; adjudication before the Board is a way to implement and preserve these 

public values crucial to a democratic society. It has been my privilege to participate as 

Chairman in the work of the Board. 

Ben L. Erdreich 

Chairman 
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 provides leadership to the MSPB regional offices 

in carrying out their adjudicatory and administrative functions. The five regional offices 

(including five field offices) receive and process initial appeals and related cases filed 

with MSPB. Administrative judges in the regional and field offices may also adjudicate 

corrective actions brought by the Special Counsel when such cases are reassigned from 

headquarters. The judges are responsible for adjudicating assigned cases and for issuing fair 

and well-reasoned initial decisions. 

The Office of the Administrative Law Judge adjudicates and issues initial decisions 

in Hatch Act cases, corrective and disciplinary action complaints brought by the Special 

Counsel, and proposed agency actions against administrative law judges. The Administrative 

Law Judge is authorized to decide initial Special Counsel stay requests under authority 

delegated by individual Board members and to hold informal hearings in performance-based 

removals from the SES. The Administrative Law Judge also adjudicates and issues initial 

decisions in MSPB employee appeals, appeals involving classified information affecting 

national security, and other cases assigned by the Board. 

The Office of Appeals Counsel prepares proposed decisions that recommend 

appropriate action in cases where a party petitions for review of a judge's initial decision and 

in all other cases decided by the 3-member Board, except for those cases assigned to the 

Office of the General Counsel. The office conducts legal research andsubmits 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 judges, makes 

recommendations on reopening cases on the Board's own motion, and provides research 

and policy memoranda to the Board on legal issues. 

The Office of the Clerk of the Board receives and processes cases filed at Board 

headquarters, rules on certain procedural matters, and issues the Board's Opinions and 

Orders. The office serves as the Board's public information center, including providing 

information on the status of cases, distributing copies of Board decisions and publications, 

and operating the Board's Library and on-line 

information services. The office answers requests under the Freedom of Information and 

Privacy Acts at the Board's headquarters and responds to all other information requests 

except those for which the Office of the General Counsel or the Office of Policy and 

Evaluation is responsible. The office also certifies official records to the courts and Federal 

administrative agencies, and manages the Board's records and directives system, legal 

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

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

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

operations. Pursuant to the Board's statutory authority under 5 U.S.C. 1204(i), the office 

represents the Board in litigation. It also prepares proposed decisions for the Board on 

assigned cases, including requests to review OPM regulations and cases involving 

enforcement of Board orders. The office coordinates the Board's legislative policy and 

congressional relations functions; responds to requests for non-case related information 

from the White House, Congress, and the media; and produces public information 
publications and the agency's annual report to the President and the Congress. 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 and are distributed to a national audience. The 

office disseminates information about the Board's studies through outreach appearances, 

articles, and electronic media. The office also responds to requests from Federal agencies for 

information, advice, and assistance on issues that have been the subject of Board studies. 

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 administrative divisions operate under the supervision of the Chief of 

Staff: 

The Financial and Administrative Management Division administers the budget, 

procurement, property management, physical security, and general services functions of the 

Board. It develops and coordinates internal management programs and projects, including 

review of internal controls agencywide. It also administers the agency's cross-servicing 

arrangements with the U.S. Department of Agriculture's National Finance Center (NFC) for 

accounting and payroll services and with ABS (APHIS Business Services) for human 

resources management services. 

 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. 

U.S. Merit Systems Protection Board 

Human Resources Management services are provided by 

USDA's APHIS Business Services. 

Payroll and accounting services are provided by USDA's 

National Finance Center. 
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 

Tennessee 

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, D.C.; 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 1999 CASE PROCESSING -

STATISTICAL HIGHLIGHTS 

CASES DECIDED BY MSPB IN FY 1999 

Regional Office (R0)/Field Office (FO) 

Appeals 1 6,369

Addendum Cases 2 1,176

Stay Requests 3 124

TOTAL RO/FO Decisions 7,669

ALJ Decisions - Original Jurisdiction Cases 

4 

12

Board Decisions: 

Appellate Jurisdiction: 

PFRs - Appeals 1,748

PFRs - Addendum Cases 191

Reviews of Stay Request Rulings 0

Requests for Stay of Board Order 0

Reopenings 5 5

Court Remands 25

Compliance Referrals 58

EEOC Non-concurrence Cases 2

Arbitration Cases 6 2

Subtotal 2,031

Original Jurisdiction 7 94

TOTAL Board Decisions 8 2,125

TOTAL Decisions (Board, ALJ, RO/FOs) 9,806

See next page for footnotes. 
FOOTNOTES TO TABLE 

1 Includes 7 initial appeals transferred to Board headquarters and adjudicated by ALJ. These 

were appeals filed by administrative law judges challenging OPM employment practices. 

2 Includes 313 requests for attorney fees, 17 requests for compensatory damages 

(discrimination cases only), 7 requests for consequential damages (whistleblower cases 

only), 574 petitions for enforcement, 246 Board remand cases, and 19 court remand 

cases. 

3 Includes 82 stay requests in whistleblower cases and 42 in non-whistleblower cases. 

4 Covers initial decisions issued by ALJ. Case type breakdown: 5 OSC corrective actions (3 

initial cases plus 2 attorney fee cases), 4 OSC disciplinary actions (2 attorney fee cases 

and 1 remand related to non-Hatch Act disciplinary actions plus 1 initial Hatch Act case), 

and 3 actions against ALJs. 

5 Includes 4 cases reopened by the Board on its own motion and 1 case where OPM 

requested reconsideration. 

6 Includes 1 initial arbitration case and 1 attorney fee case. 

7 Covers final Board decisions. Case type breakdown: 10 OSC stays; 2 OSC corrective 

actions (1 initial case plus 1 compliance case), 4 OSC disciplinary actions (including 1 

reopening), 1 action against ALJ, and 77 regulation review requests. 

8 In addition to the 2,125 cases closed by the Board with a final decision, there were 17 

interlocutory appeals decided by the Board in FY 1999. Interlocutory appeals typically 

raise difficult issues or issues not previously addressed by the Board. 
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 a 

final decision or order. 

• 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. 

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

review at Board headquarters. In these and other matters, the Board issues final decisions or 

orders: 

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

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

decision on an appeal or in an addendum case. 

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

administrative judge's order ruling on a stay request. 

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

award where the employee has grieved an action appealable to the Board and the 

employee raises an issue of prohibited discrimination. 

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

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

decision. 

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

reconsider a final decision. 

• Court Remand - A case returned to the Board by a court, after an appellant or the 
Director of OPM has sought judicial review of a final Board decision, for issuance of a 

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

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

appellant has sought EEOC review of a Board decision, in which the EEOC does not 

concur with the Board decision on the discrimination issue. 

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

enforcement of a final Board decision or order, 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 1999 

Regional and Field Offices 

• Case Receipts - The regional and field offices received 7,398 new cases (initial appeals, 

addendum cases, and stay requests) in FY 1999—down about 5 percent from the number 

received in FY 1998. At the end of the fiscal year, there were 1,737 cases pending in the 

regional and field offices. 

• Cases Decided - MSPB judges decided 7,669 cases in FY 1999. This number includes 

6,369 initial appeals (including 7 decided at headquarters) and 1,176 addendum cases. 

There were 124 orders ruling on stay requests-82 in whistleblower cases and 42 in nonwhistleblower cases. 

• Disposition - Of the initial appeals decided, 3,126 (49 percent) were dismissed. Of the 

dismissals, 66 percent were for lack of jurisdiction, agency cancellation of the action, or 

appellant withdrawal of the appeal; 7 percent were dismissed as untimely; and 27 

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

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

adjudicated on the merits. 

• Settlement Rate - Of the 3,243 appeals that were not dismissed, 1,704 were settled, for 

an overall settlement rate of 53 percent—about the same as in FY 1998. The settlement 

rate for performance cases was 71 percent; for adverse action cases, 67 percent; and for 

denials of within-grade increases, 67 percent. 

• Relief for Appellants - Considering the number of appeals settled (1,704) and those in 

which the agency action was reversed or mitigated (382), appellants received relief in 64 

percent of the appeals that were not dismissed. Of the 1,539 appeals that were not 

dismissed or settled, 25 percent resulted in reversal or mitigation of the agency action. 

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

was 100 days. Of the initial appeals decided, 83 percent were decided within 120 days. 

• Types of Actions Appealed - Of the initial appeals decided, 50 percent were appeals of 

agency adverse actions, 4 percent were RIF appeals, 4 percent involved termination of 

probationers, and 2 percent were appeals of performance-based actions. Retirement 

cases (both CSRS and FERS) accounted for 24 percent of total appeals decided, and the 

remainder involved other types of agency actions. 

• Whistleblower Appeals - There were 510 whistleblower appeals and stay requests 

decided. Of this number, 241 were individual right of action (IRA) appeals in which the 

appellant was required to exhaust the procedures of the Office of Special Counsel, 187 

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

and 82 were requests to stay an action allegedly based on whistleblowing. 
OUTCOMES OF FY 1999 APPEALS NOT DISMISSED 

Based on 3,243 initial appeals not dismissed.

(Percentages do not total 100 because of rounding.) 

DISPOSITION OF INITIAL APPEALS ADJUDICATED ON THE MERITS IN FY 1999 

Based on 1,539 adjudicated initial appeals. 
TYPES OF INITIAL APPEALS DECIDED IN FY 1999 

Total Number of Initial Appeals: 6,369 

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

(241 IRA appeals and 187 appeals of otherwise appealable actions), 252 (59 percent) 

were dismissed. In the other 176 whistleblower appeals, appellants received relief—

through settlement, reversal, or mitigation—in 97 (55 percent). 

• Mixed Cases - Allegations of discrimination were raised in 1,093 of the initial appeals 

decided; however, in 852 of those appeals, the discrimination issue was not decided 

because the case was dismissed (550) or settled (297) or the allegation was withdrawn 

(5). The remaining 241 mixed case appeals resulted in a finding of no discrimination in 

234 (97 percent) and a finding of discrimination in 7 (3 percent). 

Board Headquarters 

• Case Receipts - At headquarters, the Board received 2,083 new petitions for review and 

other cases (both appellate and original jurisdiction) in FY 1999—down about 3 percent 

from FY 1998. At the end of the fiscal year, there were 1,076 cases pending. 

• Cases Decided - The 3-member Board decided 2,125 cases in FY 1999. Of these, 1,748 

were petitions for review of initial decisions on appeals, 191 were petitions for review of 

initial decisions in addendum cases, 92 were other appellate jurisdiction cases, and 94 

were original jurisdiction cases. The Board also issued decisions on 17 interlocutory 

appeals. In addition, the Administrative Law Judge issued initial decisions in 12 original 

jurisdiction cases. 

• Disposition of PFRs - Of the 1,748 petitions for review of initial decisions on appeals, 16 

percent were dismissed, 3 percent were settled, and 59 percent were denied for failure to 

meet the criteria for review. The remaining 22 percent consisted of 14 percent granted 

and 8 percent denied but simultaneously reopened by the Board. 
• Outcome of PFRs Reviewed - Of the decisions in the 393 PFRs that were granted or 

denied but simultaneously reopened, 27 percent affirmed the initial decision, 17 percent 

reversed it, and 52 percent remanded the case to the administrative judge. In the 

remaining 4 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 222 days. 

Additional fiscal year 1999 case processing statistics, including a 

breakdown of appeals by agency, are contained in the Board publication, 

Cases Decided by the U.S. Merit Systems Protection Board, FY 1999. 
ADJUDICATION 

The Board continued to issue significant precedential decisions during fiscal year 

1999, including decisions applying relatively new laws such as the Uniformed Services 

Employment and Reemployment Rights Act (USERRA) and earlier laws such as the 

Whistleblower Protection Act (WPA). The Board also issued several important decisions 

interpreting its jurisdiction over various matters, evidentiary requirements, and authority to 

award damages. 

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) 

Morgan v. United States Postal Service, 82 M.S.P.R. 1 (1999) 

In this case of first impression, the Board held that a claim that an agency has 

discriminated against an employee because of his military service may be raised as an 

affirmative defense to an adverse action by the agency. The Board reasoned that a USERRA 

claim of discrimination because of military service comes under the category of affirmative 

defenses because the agency's action is allegedly not in accordance with the law. Even as a 

defense, rather than as a cause of action, certain general rules apply. If the appellant sought 

the assistance of the Secretary of Labor by filing a complaint pursuant to 38 U.S.C. § 4322 

and those proceedings have not been exhausted, the Board does not have jurisdiction over 

the claim. The burden of proof will vary depending on whether the appellant attempts to 

prove the claim through direct or indirect evidence. 

Bodus v. Department of the Air Force, 82 M.S.P.R. 508 (1999) 

In cases involving personnel actions that are independently appealable to the Board, a 

claim of discrimination based on military service under USERRA is an affirmative defense, to 

which the appellant could add others, such as a claim of discrimination based on race or sex. 

In cases in which the personnel actions at issue are not otherwise appealable, however, the 

Board's authority is limited to determining whether the agency violated USERRA. USERRA 

claimants who believe that they have also suffered discrimination based on something other 

than their military service may seek redress from EEOC. 

Williams v. Department of the Army, 83 M.S.P.R. 109 (1999) 

The Board held that the 1998 amendment to USERRA created a cause of action for 

alleged violations of the Veterans' Reemployment Rights Act (VRRA), the predecessor 

statute to USERRA, but the amendment does not make substantive USERRA law retroactive. 

To read the amendment as making substantive USERRA law retroactive would impose new 

duties on already completed transactions. Where, as in this case, the law as it existed in 

1984 contains no provision upon which the appellant could base a claim of discrimination 

because of his status as a veteran, the Board dismissed the appeal for failure to state a 

claim upon which relief can be granted. 
WHISTLEBLOWER PROTECTION ACT 

Roach v. Department of the Army, 82 M.S.P.R. 464 (1999) 

The Board held that the denial, revocation, or suspension of a security clearance is not 

a personnel action under 5 U.S.C. § 2302 and that, even after the 1994 amendments to the 

WPA, the Board continues to lack jurisdiction over security clearance issues. A companion 

case, Hesse v. State, 82 M.S.P.R. 489 (1999), addressed the security clearance issue in the 

context of a Chapter 75 appeal and reached a similar conclusion. 

Keefer v. Department of Agriculture,82 M.S.P.R. 687 (1999) 

In this interlocutory appeal, the Board held that a disclosure, in order to be protected 

under the WPA, need not be so specific as to allow a recipient to conduct an investigation 

without having to return to the employee for additional information. Although disclosures 

must be specific and detailed—not vague allegations of wrongdoing regarding broad or 

imprecise matters—the Board may not impose additional jurisdictional requirements, such as 

a specificity requirement, that are not found in the statute. 

McVay v. Arkansas National Guard, 80 M.S.P.R. 120 (1998) 

The Board ruled that the appeal of a National Guard Technician must be dismissed for 

failure to state a claim upon which relief may be granted. Under 32 U.S.C. §§ 709(e)(4) and 

(5), a National Guard Technician may not appeal a reduction in grade and an involuntary 

retirement, even if raised as an IRA, beyond the State Adjutant General. A nonselection for 

promotion is a personnel action and its consideration by the Board is not precluded by Title 

32, but no available relief would be effective because a Board order is not enforceable 

against the National Guard. 

Dick v. Department of Veterans Affairs,83 M.S.P.R. 464 (1999) 

The Board ruled that it had jurisdiction over this IRA appeal by a Department of 

Veterans Affairs (DVA) health care professional, concluding that the independent personnel 

system under Title 38 was not an impediment. The DVA's Disciplinary Appeals Board has 

jurisdiction over "major adverse actions" where questions of "professional conduct or 

competence" are involved. If such a matter is not at issue, a personnel action that otherwise 

meets the WPA's requirements can be contested before the Board in an IRA appeal. 

DiGiorgio v. Department of the Navy,84 M.S.P.R. 6 (1999) 

The Board ruled that allegations of wrongdoing that obviously implicate a violation of 

law, rule, or regulation, such as alleged fraud in claiming overtime pay, do not require an 

appellant to identify any particular one. In this case, the Board held that a disclosure made 

after the allegedly retaliatory personnel action cannot have been a contributing factor to the 

action. 

BOARD JURISDICTION: CONSTRUCTIVE ACTIONS 

Colburn v. Department of Justice, 80 M.S.P.R. 257 (1998) 

A lateral transfer between agencies is appealable if it is involuntary, since it is 

tantamount to an involuntary retirement or resignation, which also severs the employment 

relationship. 
Hogan v. Department of the Navy, 81 M.S.P.R. 252 (1999) 

The Board clarified when it will find jurisdiction where an appellant claims that he 

suffered a constructive demotion as a result of a classification matter. The Board will not 

take jurisdiction over a constructive demotion appeal just because an employee's former 

position was misclassified or "should have been" upgraded; rather, it will hear such an 

appeal only where a classification action that is either a correction of a classification error or 

an application of a new classification standard is taken after the appellant's reassignment. 

Peoples, et al, v. Department of the Navy, 83 M.S.P.R. 216 (1999) 

The Board held that proof of intolerable working conditions compelling an employee to 

be absent for more than 14 days may support a finding of constructive suspension. The 

agency's actual or constructive knowledge of the conditions is required before any burden to 

alleviate them arises. 

Perrine v. General Services Administration, 81 M.S.P.R. 155 (1999) 

The decision restates the history of the Voluntary Separation Incentive Payment 

(VSIP) program and its part in the Federal workforce restructuring and downsizing. It also 

restates the law as to Board jurisdiction over resignation and discusses the relationship 

between resignation and the VSIP program. The Board concluded that a signed separation 

agreement to retire under the agency's buyout program was not by itself a "valid reason" to 

justify the agency's denial of the withdrawal request. The Board found, however, that the 

agency established a valid reason independent of the agreement and based on 

administrative disruption when it showed that it had reduced its FTE levels based on buyout 

commitments. The Board then examined the agency's hardship-exception policy, determined 

that the appellant failed to satisfy its standard of extreme hardship or extraordinary 

circumstances, and concluded that the agency properly denied the withdrawal request. The 

Board therefore lacked jurisdiction over the appellant's alleged involuntary retirement. 

Ward-Ravenell v. General Services Administration, 81 M.S.P.R. 202 (1999) 

In this companion case to Perrine v. General Services Administration, the Board 

reviewed the circumstances concerning the agency's buyout retirement offer and found that 

the appellant satisfied the agency's standard of extreme hardship or extraordinary 

circumstances for withdrawal of her buyout retirement commitment. 

BOARD JURISDICTION: OTHER 

Kelley v. United States Postal Service, 81 M.S.P.R. 38 (1999) 

The Board found that effective November 18, 1997, the term "veteran" was expanded 

to include all individuals who served on active duty in the Armed Forces during the Gulf War, 

i.e., between August 2, 1990, and January 2, 1992, and who were separated 

underhonorable conditions. Under the amended law, Gulf War veterans have preferenceeligible status, so long as they are not excluded from it under 38 U.S.C. § 5303A. That 

section excludes a veteran who first served after September 7, 1980, but did not serve 

either 24 continuous months on active duty or the full period for which he was called up. 

Because the appellant was not excluded under 38 U.S.C. § 5303A, he had standing to appeal 

his removal to the Board. 
Shifflett v. Department of the Navy, 83 M.S.P.R. 472 (1999) 

A demotion resulting from a reclassification entitling an employee to retained grade 

and pay under 5 U.S.C. Chapter 53 is not appealable as an adverse action, but a 

reclassification due to a reorganization is appealable as a reduction-in-force demotion, even 

if the reclassification was made in delayed recognition of a reorganization that occurred long 

before it. 

Von Zemenszky v. Department of Veterans Affairs, 80 M.S.P.R. 663 (1999) 

The Board ruled that health-care professionals in the Department of Veterans Affairs' 

Veterans Health Administration (VHA) are covered by the government-wide reduction in 

force (RIF) regulations promulgated by the Office of Personnel Management, and that such 

employees have the right to appeal RIF actions to the Board. The agency had eliminated 

positions in the VHA without following the government-wide RIF rules and, instead, followed 

its own internal rules. It argued before the Board that the government-wide rules did not 

apply because Congress intended for the VHA to have an independent personnel system. 

The Board disagreed, finding that the VHA is covered by the unambiguous language of the 

statutes and regulations governing RIFs , 5 U. S . C . §§ 3501-3504 and 5 CFR Part 351. The 

Board acknowledged that some aspects of the VHA personnel system, such as discipline, are 

not covered by the laws and rules generally applicable to Executive Branch employees, and 

found insufficient indication that Congress also intended to exempt the VHA from the 

Executive Branch RIF system. 

ADVERSE ACTIONS: LEAVE-RELATED 

Burge v. Department of the Air Force,82 M.S.P.R. 75 (1999) 

The Board held that under the Family and Medical Leave Act (FMLA), a Federal 

employee's late submission of medical documentation may be allowed where timely 

submission "is not practicable under the particular circumstances....despite the employee's 

diligent, good faith efforts." When a Federal employee requests leave under the FMLA, an 

agency is required to provide "guidance concerning the employee's rights and obligations." 

The agency may request administratively acceptable evidence but may not apply a more 

restrictive leave policy than the law does. In determining whether a Federal employee's 

untimely medical certification must be accepted by an agency, the Board adopted the same 

standard that applies to the private sector and the Postal Service. 

Moore v. United States Postal Service, 83 M.S.P.R. 533 (1999) 

The agency found the appellant ineligible for FMLA leave on the ground that he had 

not served the statutorily-required 1,250 hours of employment in the year preceding the 

leave request. The agency had removed the appellant, and although the Board had reversed 

that action on appeal, the agency treated his absence from the rolls as disqualifying him 

from FMLA coverage. The Board disagreed. Under the Back Pay Act (5 U.S.C. § 

5596(b)(1)(B)), an employee "for all purposes, is deemed to have performed service for the 

agency during that period" for which he received back pay. That broad provision deeming an 

employee to have worked encompasses the service requirement for eligibility for FMLA 

leave. 

DISCRIMINATION-RELATED ISSUES 

Lamberson v. Department of Veterans Affairs, 80 M.S.P.R. 648 (1999) 
A disability retirement award under CSRS or FERS does not automatically bar an 

appellant from alleging that a removal wasdiscriminatory because of the agency's failure to 

accommodate that disability. The Board will employ a case-by-case approach in determining 

the effect of an application for or receipt of a disability retirement award upon a claim of 

disability discrimination. 

Weslowski v. Department of the Army, 80 M.S.P.R. 585 (1999) 

An appellant may not raise a discrimination claim for the first time on petition for 

review of an administrative judge's decision if he had sufficient knowledge of facts and 

circumstances, while the appeal was pending before the administrative judge, to form a 

reasonable suspicion that discrimination had occurred. His responsibility to raise the issue is 

triggered when he has sufficient facts to reasonably suspect discrimination, even before all 

of the facts that would have supported a charge of discrimination have become apparent. 

EVIDENTIARY MATTERS 

Christofili v. Department of the Army, 81 M.S.P.R. 384 (1999) 

The Board ruled on interlocutory appeal that an appellant may obtain the disclosure of 

relevant information from an agency and its employees through any lawful means, in 

addition to the Board's discovery procedures. Sanctions, which may be imposed if a party 

has failed to exercise due diligence or has exhibited negligence or bad faith in its efforts to 

comply with Board regulations or a judge's order, are not warranted where a party uses 

lawful means other than the Board's discovery procedures to gain information. The Board 

also concluded that it has no authority to enforce a State's Rules of Professional Conduct 

against an attorney representative in its proceedings. 

Gregory v. Federal Communications Commission, 84 M.S.P.R. 22 (1999) 

To support a claim of witness intimidation by an agency official's presence at a hearing, an 

appellant must show that the administrative judge's error in controlling the proceedings 

denigrated her substantive rights and that the official threatened the witness with adverse 

consequences or suggested that the witness either not testify or not testify truthfully. 

Sapp v. United States Postal Service, 82 M.S.P.R. 411 (1999) 

Federal employee witnesses are in official duty status when appearing at a Board 

hearing and are entitled to pay and benefits including travel and per diem for that time 

under 5 CFR 1201.33, but no comparable regulation exists with regard to a grant of official 

time for otherwise pursuing an appeal. An appellant's non-attorney representative, even if a 

Federal employee, is not entitled to official time to pursue representation nor is he entitled 

to be paid for the time he spent representing her because there was no attorney-client 

relationship. 

MISCELLANEOUS TOPICS 

Reid v. United States Postal Service, 80 M.S.P.R. 405 (1998) 

An appellant who is otherwise entitled to a compensatory damages award may receive 

such damages for medical services paid by his health insurer. The Board based its decision 

on the collateral source rule, which provides that benefits received by the plaintiff from a 

source collateral to the defendant may not be used to reduce that defendant's liability for 
damages. 

Kinney v. Department of Agriculture, 82 M.S.P.R. 338 (1999) 

The Board ruled on interlocutory appeal that it does not have authority under the WPA 

to award monetary damages for nonpecuniary harm, such as emotional or mental distress. 

The Board noted that 5 U. S .C. § 1221(g)(1)(A)(ii) authorizes consequential damages for 

whistleblower reprisal by specifying the Board's authority to award "back pay and related 

benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable 

consequential damages." The Board applied the statutory construction rule requiring that a 

general statutory term be understood in light of the specific terms that surround it and that 

a catchall phrase be read as applying only to categories similar to those specifically 

enumerated (ejusdem generis). The Board noted that, unlike the WPA, the legislative history 

of the Civil Rights Act of 1991 made clear that damages for nonpecuniary harm were 

intended. It also noted that waivers of sovereign immunity must be interpreted narrowly in 

favor of the Government. 

Farquhar v. Department of the Air Force, 82 M.S.P.R. 454 (1999) 

Compensatory damages are not available for claims of age discrimination or reprisal 

for making a charge, testifying, assisting, or participating in an investigation, proceeding, or 

hearing that is not under Title VII. 

Bracey & Wilson v. Office of Personnel Management, 83 M.S.P.R. 400 (1999) 

In this precedential decision on entitlement to disability retirement, the Board held 

that a light-duty assignment is considered a "position" under the CSRS and FERS regulatory 

definitions of "disabled," "accommodation," and "vacant position," even when that 

assignment does not constitute an "established position" in the employing agency. The 

Board further held that if an employee covered by CSRS or FERS cannot perform the duties 

of his or her position of record or any "established position" in the employing agency, a 

light-duty assignment is an "accommodation" under the governing regulation that 

disqualifies the individual from receiving disability retirement. 

Haebe v. Department of Justice, 81 M.S.P.R. 167 (1999) 

In addition to restating several general rules regarding interim relief, the Board 

reviewed the legislative history of the relevant provision of the Whistleblower Protection Act 

and found that Congress did not intend that agencies meet a higher standard when 

complying with an interim relief reinstatement order than when complying with a final relief 

reinstatement order. Accordingly, the Board held that, even absent an explicit undue 

disruption determination, the exception to the rule that an employee must be reinstated to 

the position from which he was removed applies in interim relief, as well as in final relief 

situations, where the agency establishes that it had a "strong overriding interest" or 

"compelling" reasons for placing him in a different position. The Board found that the agency 

met that test here based on its decision that it did not want the appellant, a DEA Criminal 

Investigator, to testify in a criminal proceeding. 

In a companion case, Purzycki v. General Services Administration, 81 M.S.P.R. 188 

(1999), the Board found that the agency met the "strong overriding interest" or "compelling" 

reasons test based on the application of its usual policy of management rotation, which had 

resulted in another employee's placement in the appellant's position upon his resignation. 

Morgan v. Department of Energy, 81 M.S.P.R. 48 (1999) 

The Board addressed for the first time the applicability of the 1998 amendment to the 
Back Pay Act. Under the amended statute, an award of back pay upon an administrative 

determination that a personnel action was unwarranted or unjustified cannot be made for a 

period of greater than six years before the date of filing a timely administrative appeal or, 

absent a timely filing, six years before the date of the administrative determination. Pub. L. 

No. 105261, 112 Stat. 1920 (Oct. 17, 1998). The Board stated that there was a question as 

to whether the statutory amendment should apply retroactively, i.e., to an appeal from a 

personnel action taken prior to the amendment, but found it unnecessary to resolve the 

issue because the back pay award in the instant appeal covered only a five-year period 

ending on the date that the appeal was timely filed. 

ACCOMPLISHMENTS IN ADJUDICATION 

Alternative Dispute Resolution 

The Board has expanded its use of alternative dispute resolution (ADR) to provide 

settlement opportunities at earlier and later stages of an employment dispute. Although 

settlement of over 50 percent of initial appeals continues as a significant part of its ADR 

program, the Board has made new opportunities for settlement available. During FY 1999, 

the Board changed its regulations to make sure Board time framesfor filing do not impede 

the parties getting together to resolve a personnel dispute. The Board amended its 

regulations to allow an automatic 30-day extension of the regulatory time limit for filing an 

appeal where the parties mutually agree in writing to engage in alternative dispute 

resolution prior to coming to the Board for a formal resolution of the dispute (64 FR 27899, 

May 24, 1999). 

The Board took a look at the early stages of a personnel dispute—while a matter is 

still at the agency level—to see if an early intervention ADR program will help agencies and 

employees resolve employment disputes before litigation is an issue. This resulted in the 

Board's initiation of a training program to develop a cadre of knowledgeable and skilled 

specialists who can intercept employee disputes before appeals are filed with the Board. The 

first training session for Certified Dispute Resolution Specialists was held in September 

1999. The program, limited to 60 participants, was fully subscribed and applicants were 

turned away. Participants were to take a look at their agencies, identify problems or barriers 

to ADR, initiate actions to resolve issues, and try to get some success in acceptance of ADR 

in personnel matters. The willingness of agencies to send employees to be trained as 

Certified Dispute Resolution Specialists suggests that early intervention has great potential. 

The Board's extension of its ADR program to cases decided by the three Board 

members (petitions for review (PFRs)) has also proved a valuable alternative to litigation. 

The PFR Settlement Program achieved a 27 percent rate of success in appeals where 

settlement was attempted at the headquarters level in FY 1999. Considering that settlement 

had already been discussed at the regional or field office level to no avail in nearly all of 

those cases, the Board's customers and observers were often surprised to learn of this 

significant rate of success. In addition, the settlement efforts themselves—successful or 

not—furthered customer service. Pro se appellants and other parties regularly conveyed 

their gratification with the settlement process as a vehicle to promote better understanding 

of both the adjudicatory process and the law as applied to their cases. 

The Board has adopted an ADR agency-wide policy that recognizes formally the 

importance of resolving disputes—including those in which MSPB is involved as a party—

without litigation. The Board's policy implements the provisions of the Administrative Dispute 

Resolution Act and the Presidential Memorandum of May 1, 1998, implementing that Act. 

For FY 2000, the Board has instituted a trial case processing experiment involving the 

suspension of case processing in order to allow the parties additional time to engage in 
discovery or settlement. 

Videoconferencing 

The Board's revolution of the hearing process through videoconferencing continues to 

please parties and helps the Board meet its adjudication responsibilities. Last year, the 

Board's administrative judges held 128 video hearings—over twice as many as in FY 1998 

(61 hearings). The Board also uses the video conferencing equipment for video testimony, 

prehearing conferences, and settlement discussions. Administratively, MSPB offices use the 

equipment to hold multi-office staff meetings, training sessions, and employment interviews. 

This new way of doing business is now a regular part of MSPB operations and allows the 

Board to avoid costly and time consuming travel by judges, parties, and other Board 

employees. 

Bench Decisions 

The Board's bench decision project, which authorizes administrative judges to 

announce decisions immediately following a hearing, continues to be an effective 

adjudicative tool. After issuing an oral decision, the administrative judge documents this 

decision in a brief written decision that is provided to the parties shortly after the hearing. 

The bench decision initiative is intended to provide parties with a decision more quickly and 

generally speed the decision-making process of the Board. The Board's judges issued over 

80 bench decisions in FY 1999. 

Board Procedures 

The Board is working on plans to test electronic filing of case documents through email addresses posted on the Board's Web site and increased distribution of Board decisions 

in electronic form. 

In FY 1999, the Board implemented a pilot program in the Office of the Clerk, similar 

to the system now used in many Federal courts, that authorizes the Clerk to "filter" certain 

cases by identifying plainly deficient PFRs and/or PFRs that are procedurally deficient or not 

within the Board's purview. In such cases, proposed short-form Orders are drafted by 

attorneys in the Clerk's office and forwarded directly to the Board rather than to the Office of 

Appeals Counsel for further review. The focus of the pilot is on PFRs that are: (1) patently 

non-meritorious or otherwise fail to prosecute an appeal; (2) procedurally deficient where 

the party fails to respond to a deficiency notice or fails to make a filing in response to a 

deficiency notice; (3) not within the Board's purview; and (4) untimely with no attempt to 

show good cause. The Clerk estimates that approximately 4 to 8 percent of PFRs can be 

handled through this process annually. 

Adjudicatory Regulations 

In May 1999, the Board amended its interim relief regulations regarding what an 

agency must show when it files a PFR of an initial decision that includes an interim relief 

order (64 FR 27899-27901, May 24, 1999). The intent of the change is to reduce the 

number of PFRs dismissed on technical grounds, thus allowing the Board to reach the merits 

of the case. 

Shortly after the end of the fiscal year, the Board published final regulations for the 

processing of USERRA appeals (64 FR 5450754508, October 7, 1999). 
ACCESS TO MSPB ADJUDICATORY PROCEDURES AND DECISIONS 

Additional information on the Board's procedures is available in its publications, An 

Introduction to the MSPB, Questions & Answers About Appeals, and Questions & Answers 

About Whistleblower Appeals. These publications were revised and updated in 1999. 

Final Board decisions are published by commercial publishers, including West 

Publishing Company (United States Merit Systems Protection Board Reporter), Labor 

Relations Press (Federal Merit Systems Reporter), and Information Handling Services 

(PERSONNET). All citations to Board decisions in this report are to the West's publication. 

Final Board decisions, weekly summaries of significant decisions, the 

Board's information publications, the MSPB Appeal Form, and the MSPB PFR 

Form are available on the Board's World Wide Web site at www.mspb.gov. 
LITIGATION 

JUDICIAL REVIEW AND LITIGATION 

Final Board decisions in both appellate and original jurisdiction cases are subject to 

judicial review by the United States Court of Appeals for the Federal Circuit. There are two 

exceptions: (1) decisions in mixed cases involving allegations of discrimination; and (2) 

decisions in Hatch Act cases involving State or local government employees. These cases 

may be appealed to an appropriate U.S. district court. 

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

may also seek judicial review of a final Board decision that the Director determines will have 

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

During fiscal year 1999, the U.S. Court of Appeals for the Federal Circuit issued 

decisions on review of 403 final Board decisions and left the Board decision unchanged in 93 

percent of those. 

The Whistleblower Protection Act of 1989 granted the Board litigating authority to 

defend its appellate decisions except where the merits of the underlying personnel action or 

a request for attorney fees is at issue. In addition, the Board is a respondent in all cases in 

which the Director of OPM seeks judicial review of a Board decision. The Board also litigates 

appeals from Board decisions in cases brought by the Special Counsel. The Board was 

responsible for litigating 109 cases in the Federal Circuit during the fiscal year. 

Other active litigation includes discrimination cases filed in various Federal district 

courts when the Board is a defendant; cases in which the Board intervenes; cases where 

Board employees are sued in their personal capacities for actions taken by them within the 

scope of their employment; administrative litigation arising out of appeals to MSPB filed by 

the Board's own employees; and cases brought by the Board to enforce subpoenas issued by 

the Office of Special Counsel and the Board's administrative judges. 

The Office of the General Counsel monitors cases involving appeals from decisions 

issued by the Board under its appellate jurisdiction. The employing agency is the named 

respondent in these cases and is defended by the Department of Justice. Board activities in 

connection with monitored litigation include responding to inquiries from the parties or the 

court, informing the Board of significant cases scheduled for argument or decision by the 

court, and preparing summaries of published decisions. During FY 1999, attorneys in the 

Office of the General Counsel monitored 637 cases, including both new filings with the court 

and cases carried over from the previous year. 

FEDERAL CIRCUIT 

Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) 

The court adopted the Board's test in Geyer v. Department of Justice, 70 M.S.P.R. 

682, aff'd, 116 F.3d 1497 (Fed. Cir. 1997) (Table), for determining whether an agency has 

shown by clear and convincing evidence that it would have taken the same personnel action 

in the absence of the employee's whistleblowing. The Geyer factors are: (1) the strength of 

the agency's evidence in support of its personnel action; (2) the existence and strength of 
any motive to retaliate on the part of agency officials who were involved in the decision; and 

(3) any evidence that the agency takes similar actions against employees who are not 

whistleblowers but who are otherwise similarly situated. 

Carrier v. Merit Systems Protection Board, 183 F.3d 1376 (Fed. Cir. 1999) 

The court held that the Board does not have jurisdiction over an appeal by a 

nonpreference eligible Postal Service employee who fails to establish that, as a matter of 

law, his work assignments precluded him from membership in a bargaining unit. In a 

clarification of its decision in McCandless v. Merit Systems Protection Board, 996 F.2d 1193 

(Fed. Cir. 1993), the court emphasized that this is true even where an employee is not a 

member of a bargaining unit. 

This case concerned a Postal Service employee who was not a preference eligible but 

who asserted that he had appeal rights under 39 U. S . C. § 1005 (a)(4)(A)(ii), which 

permits appeals by Postal Service employees who are 

supervisors, management employees, or employees engaged in confidential personnel work. 

The Board found that Mr. Carrier did not prove he was a manager or supervisor and that he 

had waived an opportunity to prove he was a confidential-personnel employee, and therefore 

dismissed his appeal for lack of jurisdiction. The court affirmed, rejecting Mr. Carrier's 

contention that the Board had jurisdiction over his appeal because his position was described 

as a nonbargaining unit position and there may presently be no bargaining unit in existence 

that he could join. 

Costello v. Merit Systems Protection Board, 182 F.3d 1372 (Fed. Cir. 1999) 

In this disciplinary action, which the Office of Special Counsel had filed with the Board, 

the court reversed the Board's finding that Mr. Costello had violated the WPA, concluding 

that the primary focus in determining whether Mr. Costello acted in retaliation because of the 

protected disclosures of a subordinate employee, Mr. Steen, should be on the basic 

disclosure, not its subsequent repetition. The court found that the 2-year gap between the 

initial disclosures and the allegedly retaliatory action was too long an interval to justify an 

inference of cause and effect between the two, especially considering that Mr. Costello 

transferred Mr. Steen only after receiving a draft report recommending such a transfer. The 

court concluded that the fact that the disclosures were made before Mr. Costello joined the 

agency and the lack of any documented reason why Mr. Costello would have wanted to 

punish Mr. Steen for whistleblowing that was not directed against Mr. Costello (but against 

another employee whom Mr. Costello was not shown to have favored) all pointed against 

retaliation. 

The court also held that the Board, not the Special Counsel, is the proper respondent 

in a case in which the Board's exercise of its original jurisdiction is challenged. The personnel 

action being challenged here was the Board's decision that Mr. Costello committed the 

charged violations and that a penalty was warranted. In this circumstance, the court 

concluded that the Board was the agency whose action Mr. Costello was challenging. 

Halley v. Department of the Navy, 164 F.3d 602 (Fed. Cir. 1998) 

Mr. Hatley was removed from his position as a firefighter for failure to comply with 

requests for random drug testing. The Board affirmed the action on appeal. The court held 

that the agency's random drug testing program was not an unreasonable search and seizure 

prohibited by the Fourth Amendment, concluding that the Government's interest in keeping 

firefighters free of drugs outweighed Mr. Hatley's expectation of privacy. The court agreed 

with Mr. Hatley that the collection of urine for drug testing is within the protection of the 

Fourth Amendment and that programs involving random drug testing of employees must be 

evaluated for reasonableness in their circumstances. To determine reasonableness, the court 
weighed the intrusion into Mr. Hatley's privacy against the public interest in the agency's 

drug testing program. The court noted that employees who are responsible for the safety of 

others generally may be subject to drug testing, even in the absence of suspicion of 

wrongdoing. In addition, the court rejected Mr. Hatley's arguments that the drug testing 

program violated the Fifth Amendment and the United Nations' Universal Declaration of 

Human Rights. 

Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) 

In this case brought by the Director of OPM, the court held that the Board may not 

independently determine penalties, even if the Board does not sustain all of the charges 

upon which the agency's penalty was based. The court held that when the Board sustains all 

of an agency's charges, the Board may mitigate the agency's original penalty to the 

maximum reasonable penalty when it finds that the original penalty was too severe. 

Similarly, when the Board sustains fewer than all of the agency's charges, the Board may 

mitigate to the maximum reasonable penalty unless the agency has indicated either in its 

final decision or during the proceedings before the Board that it would have imposed a lesser 

penalty (than the maximum reasonable penalty) for fewer charges. 

Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999) 

The court held that the proper test in a whistleblower appeal for determining whether 

the employee had a reasonable belief under 5 U.S.C. § 2302(b)(8) that he uncovered gross 

mismanagement is "whether a disinterested observer with knowledge of the essential facts 

known to and readily ascertainable by the employee could reasonably conclude that the 

actions of the Government evidence gross mismanagement." The court held that while the 

Board's consideration of whether the employee was familiar with the alleged improper 

activities and whether his belief was shared by similarly situated employees may have some 

relevance, these facts are insufficient in themselves to show that the whistleblower had a 

reasonable belief that he disclosed gross mismanagement. When considering such evidence, 

the Board should consider the personal bias and self-interestedness of the putative 

whistleblower and his similarly situated supporters. The court stated further that review of a 

whistleblower's disclosures should begin with the presumption that public officers perform 

their duties correctly, fairly, in good faith, and in accordance with the law and governing 

regulations unless there is "irrefragable proof to the contrary" (citation omitted). The 

court remanded the case to the Board for application of the proper test. 

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999) 

In this case involving the removal of an employee on disciplinary charges, the court 

held that an employee's constitutional due process guarantee of notice (both of the charges 

and of the employer's evidence) and an opportunity to respond is violated when a deciding 

official receives new and material information through an ex parte communication. On 

remand, the Board is to examine the circumstances of the particular case and determine 

whether ex parte contacts provided new and material information. Among the factors that 

the Board should weigh are whether the ex parte communication introduces "cumulative" 

information or new information; whether the employee had a chance to respond to it; and 

whether the ex parte communications were of the type likely to result in undue pressure 

upon the deciding official to rule in a particular manner. Ultimately, the inquiry of the Board 

is whether the ex parte communication is so substantial and so likely to cause prejudice that 

no employee can fairly be required to be subjected to a deprivation of property under such 

circumstances. The court noted that such a violation of procedural due process is not subject 

to the harmless error test. 
Martin v. Department of the Air Force, 184 F.3d 1366 (Fed. Cir. 1999) 

The court held that if a wrongfully discharged employee is unable to work because of 

an accident or illness closely related or due to his interim employment or arising because of 

the unlawful discharge, the period of disability should be included in the back pay period. Mr. 

Martin was injured while working at an interim job during the period between his removal 

from the agency and his subsequent reinstatement pursuant to a Board decision. As a result 

of his injury, Mr. Martin received State workers' compensation benefits. The agency informed 

him that he would not be given back pay for the period of time he was receiving workers' 

compensation benefits because he had been unable to work during that time period. The 

court held that denying an employee back pay for a period of disability without looking at the 

cause of the disability was an unreasonable interpretation of the Back Pay Act, 5 U.S.C. § 

5596 (1994), and was also inconsistent with causation analysis that has been required under 

similar statutory back pay provisions, such as those in the National Labor Relations Act and 

Title VII of the Civil Rights Act of 1964. The court found that Mr. Martin's injury was closely 

related to the nature of his interim employment, and concluded that he should be awarded 

back pay for the time lost due to the work-related injury. The court remanded the case to 

the Board so that it could consider Mr. Martin's settlement in a parallel civil suit in calculating 

his net back pay award, noting that only that portion of the settlement agreement 

attributable to lost wages should be offset against his back pay award. 

OTHER COURTS 

Alexander v. Merit Systems Protection Board, 165 F .3d 474 (6th Cir.), cert. denied, 67 

USLW 3654 (1999) 

The court affirmed a U.S. District Court decision that affirmed the Board's decision 

finding that Mr. Alexander, a State employee, had violated the Hatch Act and directing the 

State agency to either remove him or forfeit receipt of Federal funds equal to two years of 

his pay. The Hatch Act requires the Board to remove a Federal employee found to have 

violated the Act from his position, unless the Board unanimously determines that removal is 

not warranted, in which case the Board must order a penalty of not less than a 30-day 

suspension. In contrast, the Board may order the removal of a State employee who violates 

the Act, but if the Board determines that the violation does not warrant removal, the Board 

may impose no other penalty. The court rejected the claim that the Hatch Act discriminates 

against State employees, noting that the law provides a single standard for determining 

whether a Hatch Act violation warrants removal in both Federal employee and State 

employee cases. Thus, State employees are treated more favorably than Federal employees 

under the Act because they are not penalized for violations that do not warrant removal, 

whereas Federal employees are penalized for every violation. The court determined that the 

Federal Government's interest as employer in promoting Government effectiveness, fairness, 

and the merit system in Federal employment provides a rational basis for treating Federal 

and State employees differently under the Hatch Act. The court also held that the Board has 

not applied the Hatch Act more harshly against State employees than against Federal 

employees. 

The U.S. Court of Appeals for the Federal Circuit maintains a Web 

site at www.fedcir.gov, which provides quick access to two other Web 

sites that make the court's decisions available. 
STUDIES 

THE STATUTORY STUDIES FUNCTION 

In addition to its adjudicatory functions, the Board has statutory responsibility for 

reviewing the significant actions of OPM and for conducting studies of the civil service and 

other merit systems in the Executive Branch. The studies function complements the Board's 

adjudicatory activities by reviewing Federal human resources management policies and 

practices on a systemic basis. As an independent agency, the Board is uniquely qualified to 

provide neutral, nonpartisan reviews as part of the ongoing effort to assess, develop, and 

maintain an effective and efficient civil service. 

The Board typically solicits potential study topics from a wide variety of sources in 

developing its OPM oversight and studies agenda. The Board's studies are usually 

governmentwide in scope. The Board also works with three standing panels—Federal 

managers, human resources management specialists, and union representatives—who are 

surveyed on emerging civil service and workforce issues. The standing panel format gives 

the Board the ability to obtain data quickly on specific issues to meet the needs of agencies 

and Congress. Data for the longer studies are collected through a variety of techniques 

including mail and telephone surveys, on-site systems reviews, interrogatories addressed to 

agencies, formal discussions with subject matter experts, computer-based data analysis, 

and reviews of secondary source materials. 

The Board's reports are submitted to the President and the Congress, as required by 

law. The reports are also made available to a large 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 reports and other 

published material are now widely available through the Internet, both at the Board's own 

Web site and at Government and private web sites that feature links with the Board's Web 

site as a service to their customers. 

REPORTS ISSUED IN FY 1999 

The Role of Delegated Examining Units: Hiring New Employees in a Decentralized Civil 

Service (August 1999): In the mid-1990s, the Office of Personnel Management delegated to 

agencies the authority to examine applicants for virtually every position in the competitive 

civil service. This decentralization of examining authority reflected the desire of Congress 

and the Administration to make the hiring process faster and less bureaucratic. As a result 

of this decentralization, activities related to the competitive hiring of new employees are 

now generally performed by agency human resources employees working in the 

Government's 650 delegated examining units (DEUs). This report presents the findings of 

the Board's study of the Federal Government's delegated examining units. 

In reviewing how delegated examining units operate, the Board found that the units 

perform two essential tasks: publicizing the existence of vacant positions, and assessing 

applicants to identify the best candidates to refer to selecting officials for employment 

consideration. Most of the assessments are done either by evaluating the education and 

experience of applicants in relation to predetermined evaluation criteria (referred to as case 

examining), or by administering written tests. 
Interviews with the heads of 70 randomly-selected DEUs revealed a widespread belief 

that delegated examining has eliminated the major difficulties associated with centralized 

hiring, i.e., the length of time it took to get candidates referred from OPM, and the poor 

quality or unavailability of OPM-referred candidates. Over 80 percent of the DEU officials 

interviewed for the study said that delegated examining enables them to hire high-quality 

candidates in a reasonable period of time, and nearly 80 percent said that delegated 

examining is faster and more effective than centralized hiring. 

Despite these generally positive views, officials in DEUs with heavy workloads saw 

some serious problems with the system. For example, these officials believe that case 

examining frequently fails to place the best qualified candidates on DEU certificates and that 

this is unfair to job candidates and selecting officials. 

The DEU officials also said that DEU referral certificates frequently provide supervisors 

with too few candidates. This is caused, in part, by a law known as the "Rule of Three," 

which requires managers to select from among the top three available candidates. The 

report observed that limiting selecting officials' choice to the top three candidates on a 

referral list might be logically supportable if the assessment tools used were capable of 

precisely identifying the best three candidates. However, such fine distinctions usually 

cannot be made on the basis of case examining or even on the basis of written tests. 

Another concern expressed by many DEU officials was that the usefulness of the 

referral certificates is limited by the common practice of allowing significant numbers of 

current Federal employees to apply for the same job not only under internal merit promotion 

procedures, which are limited to current Federal employees, but also under DEU postings 

which are open to members of the public. Frequently, these employees are included on both 

DEU and merit promotion certificates, which decreases the number of new people a 

supervisor can consider bringing into Government. 

The report offers several recommendations to make delegated examining work better 

and improve the process for hiring new employees from outside Government: (1) Congress 

and OPM should take action to make written tests readily available to agencies; (2) as long 

as case examining remains widespread, agencies should commit sufficient resources to DEUs 

to ensure high-quality assessments; (3) the Rule of Three should be modified to allow 

supervisors to consider a greater number of qualified applicants; (4) agencies and OPM 

should amend their delegated examining agreements to eliminate consideration of 

candidates under both merit promotion and external DEU postings; and (5) agencies should 

provide selecting officials with more information on hiring rules and processes, particularly 

with respect to hiring from outside Government. 

Federal Supervisors and Poor Performers (July 1999): This is the second in the Board's 

"Perspectives" report series, which examines human resources issues from the broad 

viewpoint provided by the Board's growing body of research. Reports in this series derive 

their conclusions from the Board's research reaching back throughout its existence, rather 

than relying exclusively on data collected specifically for an individual project. 

This Perspectives report discusses the incidence of poor performance in the Federal 

workplace from the viewpoint of employees and supervisors who have responded to various 

MSPB surveys. It also looks at what supervisors do about poor performers, the effects of 

supervisors' actions, and the factors that influence supervisors' decisions about how they will 

handle inadequate performance. 
In evaluating the study findings, the Board concluded that: 

• The percentage of Federal Executive Branch workers whose performance is unacceptable is 

very low, and those who do not perform adequately often can be rehabilitated. The 

Government's measure of success in dealing with performance problems is not and should 

not be simply the number of employees it fires. 

• Rather than ignoring poor performance, most Federal supervisors who face this problem 

do take some type of action—typically informal action such as counseling or coaching—to 

deal with it. Nevertheless, Federal employee surveys and other indicators over at least 18 

years suggest that most employees, including supervisors themselves, judge this 

response to poor performance to be inadequate. 

• While it is popular to blame failures in performance management on inadequate 

supervisors or the Government's system for dealing with poor performers, the problem is 

actually much more complicated. In addition to the law and regulations, the problem is 

influenced by organizational cultures, top management's level of support for supervisors' 

performance proposals and decisions, how the Government selects employees, and the 

factors emphasized in selecting supervisors. 

• Because the issues are so complicated, a straightforward approach such as rewriting the 

law or demanding that supervisors "get tough" will not solve the problem. What is needed 

is a multi-faceted approach that takes into account the complex nature of the problem. 

The report suggests that Federal policy officials and others with an interest in 

developing a more effective response to the problem of poor performance should consider 

the following: (1) Instead of focusing so much on the technical expertise of supervisory 

candidates, Federal agencies should seek candidates for supervisory jobs who have an 

aptitude for the human relations aspects of supervisory work; (2) agency leaders should 

assess the organization's internal environment to make sure they have not inadvertently 

created incentives and disincentives that result in poor performance being tolerated by 

supervisors; (3) agencies should not embellish the systems and procedures the law requires 

in ways that make it more burdensome to take action against poor performers; (4) agencies, 

with the input of their employees, should develop modifications to the current procedures to 

avoid costly, time-consuming, and potentially disruptive formal actions; and (5) in the 

interest of preventing performance problems, agencies should examine the methods they 

use to select nonsupervisory employees and the degree to which those methods result in 

good matches of people and jobs. 

ADDITIONAL STUDIES COMPLETED 

The studies staff also completed work in FY 1999 on the following studies, which are 

scheduled to be released in FY 2000: (1) "Restoring Merit to Federal Hiring: Why Two Special 

Hiring Programs Should Be Ended," which examines the appropriateness in the current 

environment of two hiring authorities—the Outstanding Scholar authority and a noncompetitive Bilingual/Bicultural authority that are the result of a consent decree that is now 

18 years old; (2) "Competing for Federal Jobs: Job Search Experiences of New Hires," which 

recounts the experiences of candidates who were hired for Federal jobs using competitive 

procedures and who responded to a MSPB survey; and (3) "Transition Programs for 

Displaced Federal Employees: A More Permanent Approach Needed," which evaluates the 

effectiveness and efficiency of Government programs that are intended to help displaced 

Federal employees find new jobs. 
OTHER ACTIVITIES 

Issues ofMerit. In addition to reports of its studies and reviews, the Board produced 

four issues of its periodic newsletter, "Issues of Merit," during fiscal year 1999. This 

publication uses a concise, informal format to disseminate to a wide audience findings, 

analyses, and recommendations drawn from Board research. The topics covered during the 

fiscal year included: 

• Balancing merit system requirements with managers' need to fill jobs quickly; 

• Outstanding scholar hiring authority; 

• Dealing with poor performers; 

• Government managers and human resources management competencies; 

• Motivating factors for public employees; 

• Human resources decisions and strategic planning; 

• Hatch Act; 

• Temporary workforce; 

• Leadership in human resources management; 

• Due process for Federal workers; 

• Flexible work schedules and Federal supervisors; and 

• Government vacancy announcements. 

Outreach and Research Support. The studies staff continued in FY 1999 to conduct 

outreach activities such as conference presentations and contributions to various HRM or 

public administration publications and forums. In addition, the staff provided data and 

analyses to the National Academy for Public Administration (NAPA) for its project on entrylevel hiring into the Federal civilian service. The project was sponsored by a consortium of 

Federal agencies that included the major Executive departments and a number of 

independent agencies. The Board's studies staff assisted NAPA with survey sampling and 

statistical evaluation of survey results, and provided peer reviews of the resulting draft 

report. 
ADMINISTRATION 

INFORMATION TECHNOLOGY 

During FY 1999, the Board continued its initiative to take advantage of recent 

improvements in information technology and to move toward the goal of greatly reducing the 

paperwork movement and storage involved in adjudicating appeals. It has laid the 

foundation for implementing an integrated document management and workflow system by 

implementing the design phase of a "paperless" system built around imaged documents and 

electronic case records. As this system comes into full development over the next several 

years, MSPB customers will benefit from the increased efficiency and responsiveness that will 

come from having much of the adjudicatory process computerized. 

The Board determined that there are 10 to 12 categories of work that would be 

improved by being integrated into a single computerized system. These categories include 

the way that the Board accepts and stores documents from the parties appearing before it, 

as well as the manner in which the Board generates and distributes its own documents both 

internally and to the public. The entire system is being designed in consideration of the 

anticipated requirements of directives from the National Archives and Records Administration 

regarding electronic records and e-mail retention. 

The Board's electronic filing pilot project with the Federal Circuit has established the 

feasibility of such a paperless process. The first case selected, Lachance v. White and MSPB, 

involves a Board interpretation of a whistleblower law. The mechanism for filing is to post 

documents to an Internet site. Participating attorneys have passwords to access the site. 

Once posted by the court, documents may be downloaded for review. This pilot todevelop 

the process and test it is an important first step in adapting it to the Board adjudicatory 

process. 

COMPUTER SYSTEMS 

During FY 1999, the Board expanded its electronic databases to every aspect of MSPB 

work. The databases now cover directives (manuals, orders, and notices), other publications 

of broad interest (such as proposed and final regulations, legislation, OPE reports, 

newsletters, and press releases), financial information previously circulated in paper reports, 

an agency locator, and conference room reservations. MSPB employees regularly exchange 

work products electronically, edits are done on electronic files, and many documents are now 

stored electronically. 

The Board also changed its network to provide a structural framework for the 

integrated document management and workflow system. Several servers were added to the 

network for new software applications and databases, server software was upgraded to 

provide additional manageability, and the transition to Sprint from AT&T as part of FTS2001 

was begun. 
YEAR 2000 COMPLIANCE 

Over two and one-half years of planning, testing, and modifying MSPB equipment 

brought the Board to readiness for the Year 2000. MSPB upgraded most equipment and 

software. It upgraded operating system software and database software on the 

minicomputer and servers to new releases, modified applications systems to support a 4-

character year, and upgraded office PC's and software where needed. In further testing its 

systems for Y2K compliance, in 1999 the Board identified new problems with the 

telecommunications system that required correction. With Y2K supplemental funds, the 

Board installed new telephone systems at the headquarters offices as well as in several of 

the regional and field offices. These systems were certified as Y2K compliant. 

HUMAN RESOURCES CROSS SERVICING 

MSPB revolutionized its traditional way of handling internal personnel functions—

turning to an outside entity to provide human resources services. This ended a 20-year 

practice of providing human resources services with an in-house staff. The Board entered 

into a cross-servicing agreement with the Department of Agriculture's Animal and Plant 

Health Inspection Service (APHIS) at the end of fiscal year 1998 to receive human resources 

services. The first year of operation under the interagency agreement proved successful. 

MSPB has reduced its human resources staff from a high of 14 a few years ago to 1 

personnelist during fiscal year 1999, an estimated savings of about $700,000 per year. This 

savings is being redirected to adjudicating appeals and reducing the size of the backlog of 

pending cases. Under the agreement, MSPB managers have easy access to APHIS' staff of 

extremely knowledgeable and readily available specialists. The range of expertise available in 

APHIS has made the transition smooth and the service excellent. 

ADMINISTRATIVE REGULATIONS 

In September 1999, the Board published final regulations regarding the availability 

of official information (5 CFR Part 1204) to comply with the Electronic Freedom of 

Information Act Amendments of 1996, to update the fees schedule, and to add a time limit 

to ask for review by the Board's Chairman of an action or a failure to act under the 

regulations. Certain other changes were made to update the rules on the availability of 

official information for the benefit of the Board's customers, for consistency, and to comply 

with the President's Memorandum on Plain Language in Government Writing (64 FR 51039, 

September 21, 1999). 

At the same time, the Board published final regulations under the Privacy Act (5 

CFR Part 1205) to update the fees schedule, update certain information to conform to 

administrative changes, and to comply with the President's Memorandum on Plain Language 

in Government Writing (64 FR 51043, September 21, 1999). 

The Board also published a revised Organization and Functions Statement (5 CFR 

Part 1200) to reflect the closing of its human resources management office and the 

implementation of the cross servicing arrangement with APHIS (64 FR 15916, April 2, 1999). 
FINANCIAL INFORMATION 

The financing sources and current obligations incurred for fiscal year 1999 are listed 

below. All figures are in thousands of dollars. 

Financial Sources 

Current Year Appropriations $25,780

Civil Service Retirement and Disability Trust Fund 2,430

Other 12

Total financing sources 28,222

Obligations incurred - current 

Personnel 18,349

Personnel benefits 3,301

Benefits for former personnel 18

Travel and transportation 397

Transportation of things 39

Rent-GSA 1,951

Communications and utilities 860

Printing and reproduction 88

Other services 2,547

Supplies and materials 234

Equipment 376

Total obligations incurred 28,160

$62

Unobligated balance 
FOR ADDITIONAL INFORMATION 

MSPB's World Wide Web site contains information about the Board 

and its functions, where to file an appeal, and how the Board's 

adjudicatory process works. 

At the Web site, you can get Board regulations, appeal and PFR 

forms, important telephone and FAX numbers, and e-mail 

addresses for the headquarters, regional, and field offices. 

Complete decisions from July 1, 1994, are available for 

downloading. The Web site also provides weekly Case 

Summaries—an easy way to keep up with changes in Board case 

law. 

From the Web site, you can download recent Board reports and 

special studies on civil service issues. 

The Board's Web site is 

http://www.mspb.gov. 

The Board's toll-free telephone 

number is 1-800-209-8960. 

Comments or questions regarding MSPB, the Web site, or the tollfree telephone service may be sent to the Board's e-mail address, 

mspb@mspb.gov. 
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 the 

Board, 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.