United States 

Merit Systems Protection Board 

Annual Report 

Fiscal Year 1986 
THE CHAIRMAN 

U.S. MERIT SYSTEMS PROTECTION BOARD 

1120 Vermont Avenue, N.W. 

Washington, D.C. 20419 

Sirs: 

In accordance with Section 202(a) of the Civil Service Reform Act of 1978 

(5 U.S.C. § 1209(b)), it is my honor to submit the Eighth Annual Report 

of the U.S. Merit Systems Protection Board. This Report covers the 

activities of the Board for Fiscal Year 1986. 

Respectfully. 

Daniel R. Levinson 

The President of the United States The 

President of the U.S. Senate The Speaker of 

the U.S. House of 

Representatives 

Washington, D.C. 
TABLE OF CONTENTS 

Page 

Mission and Overview ............................................................ 1 

Board Members.................................................................... 2 

Board Organization ................................................................ 2 

Management Highlights ......................................................... 5 

A. Financial Statement ....................................................... 5 

B. Personnel ..................................................................... 5 

C. Management Changes................................................... 5 

1. Application of Information Technology .............................. 5 

2. Revision of Regulations .................................................. 7 

3. Settlement/Alternative Dispute Resolution ......................... 7 

Appellate Jurisdiction ............................................................ 8 

A. Initial Appeals............................................................... 8 

B. Highlights of Regional Office Activity ................................ 8 

C. Special Cases ............................................................ 10 

D. Petitions for Review .................................................... 10 

Original Jurisdiction ........................................................... 11 

Special Panel ..................................................................... 11 

Litigation........................................................................... 11 

MSPB Reviews and Studies .................................................. 12 

Outreach........................................................................... 12 

Appendix A—Appeals Data ................................................... 13 

Appendix B—Significant Board Decisions................................ 20 

Appendix C—Special Panel ................................................... 24 

Appendix D—Significant Litigation......................................... 25 

Appendix E—Special Studies ................................................ 27 
Mission and Overview 

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

agency designed to protect the integrity of Federal merit systems against 

prohibited personnel practices, to ensure adequate protection for employees 

against abuses by agency management, and to allow the government employer 

to make employment decisions based on individual merit. The Board, with a 

statutory mandate to adjudicate appeals from personnel actions for the nation's 

largest employer, has world-wide jurisdiction, wherever Federal civil servants 

are found. 

The bipartisan Board consists of a Chairman, a Vice Chairman and a Member, 

with no more than two of its three members being from the same political 

party. Board members are appointed by the President, confirmed by the Senate 

and serve overlapping, nonrenewable 7-year terms. 

The Board was established on January 1, 1979, by Reorganization Plan No. 2 of 

1978, and codified by the Civil Service Reform Act of 1978. The Act 

restructured the Federal Government's personnel administration by distributing 

functions performed by the Civil Service Commission to four newly-created 

independent agencies. The Merit Systems Protection Board was given the 

responsibility to perform the Civil Service Commission's appeals functions as 

well as special study authority and authority to review the significant activities 

of the newly established Office of Personnel Management. Other agencies 

established by Reorganization Plan No. 2 are the Office of Personnel 

Management [OPM], which manages the Federal work force; the Federal Labor 

Relations Authority [FLRA], which deals with labor relations in the Federal 

establishment; and the Office of Special Counsel [OSC], which investigates 

prohibited personnel practices, prosecutes violators of civil service rules and 

regulations, and enforces the Hatch Political Activities Act. 

The Board accomplishes the missions assigned by the Civil Service Reform Act 

by performing four responsibilities: 

• Hearing and deciding employee appeals from agency personnel actions; 

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

abuses of the merit system; 

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

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

and 

• Reviewing regulations issued by the Office of Personnel Management to 

determine whether implementation would result in the commission of a 

prohibited personnel practice. 

In Fiscal Year 1986, the Merit Systems Protection Board acted upon 9,611 

petitions. These petitions consisted of initial appeals filed with the regional 

offices, petitions for review of initial decisions filed with the Board 

Headquarters, special petitions for attorney fees, and petitions for compliance 

with Board decisions. The Board's 11 Regional Offices processed 7,938 
petitions, approximately 83 percent of total MSPB adjudications. Of the timely 

initial appeals within the Board's appellate jurisdiction, decisions issued in 18 

percent of the cases changed the agency action by reversal or mitigation of the 

penalties. 

Board Headquarters processed 1,673 petitions for review in Fiscal Year 1986. Of 

the 1,396 petitions filed from initial decisions, the regional decision was left 

unchanged in 93 percent of the cases filed. Petitions for review based on 

attorney fee and compliance actions comprised the additional 277 Headquarters 

appeals. 

The Board also has original jurisdiction to hear certain cases, including 

disciplinary actions filed by the Office of Special Counsel for violations of the 

Hatch Political Activities Act or for the commission of prohibited personnel 

practices by supervisors, as well as proposed disciplinary actions against 

administrative law judges (ALJ's). During Fiscal Year 1986 the Board received 

22 original jurisdiction cases and issued 16 decisions. 

The Board's decisions continue to earn deference before the courts. At the end 

of Fiscal Year 1986, over 97 percent of the Board's decisions had withstood the 

scrutiny of its chief reviewing court, the United States Court of Appeals for the 

Federal Circuit. 

Non-adjudicatory functions continue to be an important part of the Board's 

operations. During Fiscal Year 1986 the Board reported a special study of 

efforts by Federal agencies to involve their employees in combatting waste, 

fraud, and abuse. The Board issued a separate report on the significant actions 

undertaken by the Office of Personnel Management, including OPM's efforts to 

attract and retain a quality work force and to evaluate personnel management 

in the Federal Government. 

The Board also conducted an annual analysis of its appeal decisions and 

completed a comprehensive 5-year trend analysis of appeals activity. 

Extensive outreach was conducted by Board officials during Fiscal Year 1986. 

During the year, Board officials, on over 100 occasions, gave speeches, or 

participated in personnel or legal seminars and conferences. 

Board Members 

Chairman 

DANIEL R. LEVINSON, nominated by President Reagan and confirmed by the 

Senate, took the oath of office as a member and Chairman of the Merit Systems 

Protection Board on August 15, 1986. At the time of his appointment, Mr. 

Levinson was General Counsel of the U.S. Consumer Product Safety 

Commission, a position he held since March 1985. Previously he served for 2 

years as Deputy General Counsel of the Office of Personnel Management. Prior 

to joining OPM, Mr. Levinson was a partner in the Washington, D.C. law firm of 

McGuiness & Williams. 
HERBERT E. ELLINGWOOD was appointed by President Reagan to be the 

Board's Chairman on December 14, 1981, and served until the expiration of 

his term on March 1, 1986. At the time of his appointment Mr. Ellingwood was 

serving as Deputy Counsel to the President. Prior to his White House position, 

he was in private law practice with the firm of Caldwell & Toms in 

Sacramento, California. From 1975 to 1979, Mr. Ellingwood was Special 

Assistant Attorney General for California and was Legal Affairs Secretary to 

Governor Reagan from 1969 to 1974. 

Vice Chairman 

MARIA L. JOHNSON was nominated to the Board by President Reagan on 

March 18, 1983. She was confirmed by the Senate on May 6, 1983, and was 

designated Vice Chairman on September 19, 1983. From March 1, 1986 to 

August 15, 1986, Ms. Johnson served as the Board's Acting Chairman. At the 

time of her appointment, Ms. Johnson was a commercial loan officer with the 

Security National Bank in Anchorage, Alaska. From 1978 to 1981, she served 

as an associate with the law firm of Lambert, Griffin & McGovern in 

Washington, D.C. 

Member 

DENNIS M. DEVANEY was nominated by President Reagan to be a member 

of the Board on August 4, 1982, and confirmed by the Senate on August 20, 

1982. At the time of his appointment, Mr. Devaney was in private law practice 

in Washington, D.C., with the firm of Tighe, Curhan, and Piliero. From 1977 to 

1979, he served as Counsel for the Food Marketing Institute, and from 1975 to 

1977 was Assistant General Counsel for the U.S. Brewers Association. 

Board Organization 

The Merit Systems Protection Board has offices in Washington, D.C., and in 

key locations throughout the nation. The Chairman, as chief executive 

officer, is responsible for the management and operation of the Board. 

The Managing Director has authority, as delegated by the Chairman, for the 

day-to-day management of the Board. Providing direction and coordination for 

the Board's functional and administrative operations, the Managing Director 

oversees the systems and programs necessary for program planning, 

organization, and direction. 

The Assistant Managing Director for Management plans and coordinates 

improvements to the overall management of the Board. This office has 

program responsibility to conduct special studies of the Federal Government's 

merit systems and produce the Board's annual review of the significant actions 

of the Office of Personnel Management. 
FY 1986 

U.S. MERIT SYSTEMS PROTECTION BOARD 
The Assistant Managing Director for Regional Operations provides 

administrative guidance to and reviews the quality of initial decisions issued by 

the Board's Regional Offices. MSPB Regional Offices are located in 11 major 

metropolitan areas throughout the United States: Atlanta, Boston, Chicago, 

Dallas, Denver, New York, Philadelphia, St. Louis, San Francisco, Seattle and 

Washington, D.C. Regional Offices receive, process, and adjudicate the initial 

appeals filed with the Board. These offices have the primary function of issuing 

fair, timely, and well-reasoned decisions on all appeals. Almost one-half of the 

Board's work force is located in the Regional Offices. 

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

provides advice to the Board and its organizational components on matters of 

law arising in day-to-day operations. It represents the Board in litigation, 

drafts enforcement decisions and orders, review OPM's regulations, and drafts 

proposed final decisions for the Board in original jurisdiction cases. The Office 

of the General Counsel is also responsible for conducting the agency's ethics 

program. 

The Office of Appeals Counsel is the office primarily responsible for assisting 

the Board members in adjudicating petitions for review from initial decisions 

issued by the Regional Offices. The Office of Appeals Counsel receives and 

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

proposed opinions to the Board members for their final adjudication. This office 

also provides analytical research memoranda to the Board on legal issues. 

The Office of Legislative Counsel represent the agency before Congress, the 

media, and the public. It advises the Board on relevant legislative initiatives 

and drafts legislative proposals. Included among its responsibilities are 

responding to congressional inquiries and conducting the Board's public affairs 

and outreach programs. 

The Office of Administrative Law Judges principally issues recommended 

decisions in matters arising under the Board's original jurisdiction. The Board's 

Office of Administrative Law Judges is required by statute to act on discovery 

motions and to issue subpoenas. In addition, removals from the Senior 

Executive Service and appeals from the Board's own employees are assigned to 

this office. 

The Office of the Clerk is the Headquarters office which initially receives 

petitions for review. This office performs the ministerial Board functions that 

facilitate timely adjudication. The Clerk also rules on certain procedural 

matters relating to adjudication. After the Board members have considered a 

petition for review and reach a decision, this office distributes the Board's 

opinions and orders. 

The Office of the Comptroller directs and coordinates the administrative 

services and financial functions of the Board. These duties include 

administering the agency's budget, accounting, procurement, property 

management, audit, and security functions. 
The Office of Information Resources Management is responsible for the 

Board's automated information systems. This office develops and maintains 

the computer systems designed to help the Board efficiently manage its 

caseload and carry out its administrative responsibilities. 

The Office of Personnel manages personnel programs and assists 

managers, employees and applicants for employment. This office administers 

the staffing, classification, employee relations, performance management, 

and training functions for the Board. 

The Office of Equal Employment implements the Board's equal employment 

opportunity programs, including developing annual EEO action plans and 

procedures for processing discrimination complaints. The office also furnishes 

advice and assistance on affirmative action initiatives to the Board's offices. 
Management Highlights 

A. Financial Statement 

The obligations and expenditures of the Merit Systems Protection Board for 

Fiscal Year 1986 (October 1, 1985, through September 30, 1986) are shown 

below: 

1986 Actual Obligations and Expenditures 

(Thousands of dollars) 

Direct obligations: 

 Personnel compensation 

 Full-time permanent 11,139 

 Other than full-time permanent 513 

 Other personnel compensation 164 

 Subtotal 11,816 

 Personnel benefits 1,243 

 Benefits for former employees 143 

 Travel and transportation of persons 482 

 Transportation of things 89 

 Rental payment to GSA 1,756 

 Rental payments to others 25 

 Communications, utilities, and miscellaneous charges 790 

 Printing and reproduction 122 

 Other services 1,055 

 Supplies and materials 300 

 Equipment 1,228

 Subtotal 19,049 

Reimbursable obligations 1,308 

Total obligations 20,357 

B. Personnel 

The full time equivalent employment data as reported in the President's annual 

budgets reflect a reduction from 392 in Fiscal Year 1982 (after a peak of 420 in 

Fiscal Year 1983) to 325 it Fiscal Year 1986. This 17 percent FTE reduction 

from the Fiscal Year 1982 level demonstrates increases in the Board's case 

management efficiency and reduced staffing requirements following the 

elimination of appeals resulting from the Air Traffic Controllers strike of 1981. 

C.
Management Changes 

1. Application of Information Technology 

During Fiscal Year 1986 the Board continued to increase its information 

technology. Among the agency's computer resources are 250 personal 

computers and 13 minicomputers. The Board's integrated system includes an 

agency-wide computer network with case tracking, internal communication, 

and office automation capabilities. 

Through its case tracking system, the Board is able to monitor the status of all 

initial appeals, petitions for review, and appeal litigation actions. In Fiscal Year 

1986, this system was enhanced to include compliance cases. The tracking 

system now provides the Board with useful management information, including 

types of appeals and representation, date of hearing activity, and file location 

for all cases pending before the Regional Offices or at Headquarters. The 

tracking system interfaces with an information system that provides similar 

data on all Board appellate cases appealed to the Federal courts. 

These case management systems assist in effective resource management. 

Pleadings and docketing information entered into the data base allow 

generation of statistical reports on case processing time, workload patterns, 

and administrative issues. 

Almost all of the Board's support staff and approximately three-quarters of its 

professional staff now have personal computers. Word processing capability 

has significantly increased the productivity of the Board's professional staff, 

resulting in far less time between initial drafts and final products. 

Minicomputers in each Regional Office are used to link the offices with 

Headquarters. This communications capability, together with integrated office 

automation supporting electronic mail, calendaring, and filing, enables the 

Board to be more efficient and responsive. The computers permit varied 

automated data processing functions and supply inventory management. In 

addition, the information system facilitates the Board's daily communication 

with the National Finance Center which handles all administrative payments, 

personnel, and payroll functions. Time and attendance data are sent 

electronically to the center, as well as regular administrative, budget, and 

personnel information.
MSPB PRODUCTION* LEVELS 

BY FISCAL YEAR 

*INCLUDES DECISIONS ON INITIAL APPEALS, PETITIONS FOR REVIEW AND SPECIAL 

CASES 

MSPB FULL TIME EQUIVALENCY LEVELS 

BY FISCAL YEAR 
2. Revision of Regulations 

During Fiscal Year 1986, the Board amended its rules of practice and 

procedure to provide clear and comprehensive regulations. The regulations 

improve enforcement of Board decisions and provide updated information on 

time standards for processing appeals in the Regional Offices and at 

Headquarters. The amended regulations changed the working title of the 

attorney-examiners in the Board's Regional Offices from "presiding official" to 

"administrative judge." Regulations governing compliance and enforcement 

proceedings now provide more expeditious processing. 

The Board published its final rules of practice and procedure in both the Federal 

Register and in pamphlet form for easy use and reference. Nearly 30,000 

copies of the amended regulations were distributed to Federal departments and 

agencies and the public through the Government Printing Office. 

The amended regulations provide a better understanding of the appellate 

process and underscore to the parties their role in assuring that appeals are 

processed as promptly as possible. In addition, the obligation of each party to 

cooperate in enforcement and compliance cases is made clear. Since each 

party now must limit enforcement proceedings to disputed matters, partial 

compliance is more frequently achieved without Board intervention and those 

matters in dispute are resolved more promptly. This requirement saves 

resources for litigants and the Board alike. 

3. Settlement/Alternative Dispute Resolution 

During Fiscal Year 1986, the Board continued to emphasize mandatory 

settlement attempts as an alternative means for resolving appeals. Based on 

the Board's voluntary expedited appeals process, administrative judges 

increasingly relied on prehearing conferences and settlement negotiations, 

resulting in a 26 percent settlement rate of merit appeals. The administrative 

judges also use experience gained from the expedited appeals program in 

encouraging parties to stipulate facts not in dispute and to identify remaining 

issues for hearing. 
Appellate Jurisdiction 

A. Initial Appeals to the Board 

Most Federal employees and applicants for employment are entitled to appeal 

certain personnel actions taken by Federal agencies. Appealable matters 

include adverse actions for misconduct, performance-based removals or 

downgrades, employment suitability or retirement determinations, reductions 

in force, denials of within-grade increases, and denial of restoration to duty or 

reemployment rights. Appeals must be filed in writing, within 20 days of the 

personnel action, with the Regional Office having jurisdiction. 

After the appeal has been docketed and entered into the case tracking 

system, the Regional Office issues an order acknowledging receipt of the 

appeal and raising any questions of timeliness or jurisdiction. The appeal is 

then assigned to an administrative judge for review. By Board order, the 

agency is required to provide its evidentiary file to the appellant and the 

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

to present additional information for the administrative judge's consideration. 

The appellant may also request a hearing. If a hearing is held, each party has 

the opportunity to call and cross-examine witnesses, present evidence, and 

make arguments to the administrative judge. Hearings are open to the public 

and on the record, with copies of the record available to the parties. 

Based on the Board's established policy, the administrative judge is required to 

issue an initial decision within 120 days from the date the appeal was filed. In 

Fiscal Year 1986, over 95 percent of all initial appeals were decided within 120 

days. The chart below shows the average number of days required for Regional 

Offices to issue decisions during Fiscal Year 1986.

DECISION TIMES AT THE REGIONAL OFFICES FOR INITIAL APPEALS 

DECISIONS ONLY DURING FY 1986 

DECISION TIME (DAYS) Number of Cases Percent of Cases Percent Total 

0-29 469 6.85 6.85

30-60 1,937 28.28 35.13

61-90 1,814 26.49 61.62

91-119 2,338 34.14 95.76

120+ 291 4.24 100.00

TOTAL 6,849 
B. Highlights of Fiscal Year 1986 Regional Office Activity 

• The Board's Regional Offices decided a total of 7,938 cases in 1986. Of 

this total, 6,849 were initial appeals and 1,089 were special cases, i.e., 

attorney fees, remands and compliance, or enforcement. 

• Fifty-one percent (3,474) of the initial appeals were adverse actions. The 

remaining appeals included retirement-related decisions, terminations of 

probationary employees, performance actions, reductions in force and 

other appealable actions. 

• Settlements among the parties increased significantly over past years to 

984 or 26 percent of cases decided on the merits (3,763) and closed during 

the period. 

• The Regional Offices averaged 75 days to issue decisions during this 

period. 

• Of the initial appeals decided on their merits, 693 or 18 percent changed 

the agency action. Changes included reversals which overturned the agencies 

actions, and mitigations, which reduced the penalty imposed by the agency. 

• Hearings were held in 34 percent of all appeals. 

• More detailed information by major type of appeal and closing actions for 

agencies having 50 or more cases is presented in Appendix A. 

Composition of Workload 

The distribution of initial decisions among the various types of matters within 

the Board's appellate jurisdiction is shown below. Fifty-one percent of the 

appeals decided in Fiscal Year 1986 were adverse action appeals. 

APPEALS DECIDED BY MSPB REGIONAL OFFICES BY 

TYPE FY 1986 

TOTAL NUMBER OF APPEALS 6,849
Settlements 

Parties before the Board have been willing to make increased use of settlement 

techniques to resolve their appeals. This is consistent with the trend of dispute 

resolutions in other judicial bodies. During Fiscal Year 1986, 26 percent of merit 

cases decided were resolved by settlement. 

REGIONAL OFFICE INITIAL APPEALS CLOSED BY SETTLEMENT 

BETWEEN THE PARTIES FY 1984, 1985, AND 1986 

FISCAL 

YEAR

Number of Decisions 

*

Number of 

Settlements

Percent of 

Settlement

FY 1984 3,703 209 6

FY 1985 2,787 511 18

FY 1986 3,763 984 26

* Represents only decisions decided on the merits and does not include dismissals.

C. Special Cases 

In addition to 6,849 initial decisions issued in Fiscal Year 1986, the Regional 

Offices issued decisions in 1,089 "special cases" which resulted from earlier 

Board orders. Special cases include requests for attorney fees, enforcement 

cases alleging that there has not been full compliance with a decision of the 

Board or Regional Office, and cases remanded to the Regional Offices by the 

Board or a court. 

REGIONAL OFFICE SPECIAL CASE DECISIONS BY CATEGORY OF APPEAL 

IN FY 1986 

CATEGORY OF APPEAL FY 1986 

Attorney Fees 451

Compliance 417

Remanded by Board or Court 221

TOTAL 1,089

 
D. Petitions for Review 

The collegial, three-member Board may grant a petition for review (PFR) when it is 

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

erroneous interpretation of statute or regulation, or that new and material evidence 

is available that, despite due diligence, was not available when the record was 

closed. Petitions for review may be filed by either party, the Office of Special 

Counsel, the Office of Personnel Management (OPM) or an intervenor with the 

Office of the Clerk in Washington, D.C. The Board also has the discretion to reopen 

and reconsider an initial decision on its own motion. 

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

Further appeal may then be available in the Federal courts or, in cases involving 

allegations of certain types of discrimination, with the U.S. District Court or the 

Equal Employment Opportunity Commission. The Director of OPM may intervene or 

petition the full Board for reconsideration of a final decision. She may also seek 

judicial review of Board decisions that have a substantial impact on a civil service 

law, rule, regulation, or policy. 

Highlights of Petitions for Review 

• The Board completed action on 1,673 PFR's in Fiscal Year 1986. Of this total, 

277 PFR's were Special Cases—petitions involving attorney fees, enforcement 

and remands; and the remaining 1,396 were filed to review initial decisions. 

• Most PFR's from initial decisions in Fiscal Year 1986 were filed by employees 

(1,167 of 1,396). 

• Ninety-three percent of the PFR's acted on by the Board in Fiscal Year 1986 

left the Regional Office decision unchanged (1,292 of 1,396). 

• Through the end of Fiscal Year 1986, Board decisions had been upheld in 

97.3 percent of the appeals cases reviewed on the merits by the United States 

Court of Appeals for the Federal Circuit. 

• The Board averaged 122 days overall to issue a decision on PFR's during 

Fiscal Year 1986. 

Original Jurisdiction 

The Board has original jurisdiction over certain matters where no formal action has 

been taken within an agency, or where removal from the Senior Executive Service 

has been proposed. These cases include: 

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

• Corrective and disciplinary action cases brought by the Special Counsel 

against agencies or Federal employees who are alleged to have committed 

prohibited personnel practices; 

• Disciplinary actions brought by agencies against Administrative Law Judges; 
• Review of OPM regulations; and 

• Informal recommendations to employing agency heads in cases involving 

performance removals from the Senior Executive Service. 

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

Washington, D.C. Employees against whom Hatch Act, disciplinary actions, or 

Administrative Law Judge disciplinary action complaints are filed have 30 days 

to respond and are entitled to a hearing. These cases are generally assigned to 

the Office of the Administrative Law Judges. A judge from that office issues a 

recommended decision to the Board for final decision except in SES 

performance removals. Appeals from most original jurisdiction cases are filed 

with the United States Courts of Appeals. 

During Fiscal Year 1986, the Board received 22 original jurisdiction cases and 

issued decisions on 16 of these cases. The Special Counsel filed 13 actions of which 

6 were requests for disciplinary action; 2 were alleged violations of the Hatch Act; 

and 5 were requests for stays. The Board issued decisions on 13 Special Counsel 

cases as follows: requests for disciplinary action-7 cases; Hatch Act-1 case; and 

stay requests-5 cases. In addition, decisions were issued on 3 cases involving 

review of OPM or agency regulations. 

The other 9 cases received included 2 requests for disciplinary action involving 

Administrative Law Judges; 4 attorney fee requests; 2 hearings involving members 

of the Senior Executive Service; and 1 request for regulation review. 

Special Panel 

The Special Panel is a separate entity whose sole purpose is to resolve 

inconsistencies created when civil service law and discrimination issues intersect. 

Established by the Civil Service Reform Act of 1978 to resolve disputes between 

the Merit Systems Protection Board and the Equal Employment Opportunity 

Commission, the Special Panel consists of one Board Member designated by the 

MSPB Chairman, one EEOC Commissioner designated by the EEOC Chairman, and 

a third individual appointed by the President to serve as Chairman of the Special 

Panel. President Reagan appointed Barbara Mahone as Chairman of the Special 

Panel on October 18, 1985. 

During Fiscal Year 1986 the Special Panel issued two decisions which are 

explained in Appendix C. 
Litigation 

The Board is the respondent agency in civil actions brought in connection with any 

function carried out by the Board except final orders or decisions issued under the 

Board's appellate jurisdiction. This authority includes original jurisdiction appeals, 

jurisdictional determinations, attorney fees, and timeliness issues. Appendix D is a 

report of the Board's significant litigation activities during Fiscal Year 1986. 

MSPB Reviews and Studies 

Another major function of the Merit Systems Protection Board is to conduct ongoing 

reviews and studies of the Federal civil service system including an annual 

oversight review and report on the significant actions of the U.S. Office of Personnel 

Management. The Board's goal in carrying out this responsibility is to assure that 

the merit principles underlying the civil service system are upheld and that systemic 

prohibited personnel practices are avoided. 

The program and policy research underlying the Board's studies is carried out by a 

multidisciplinary team of personnel specialists, program analysts, and personnel 

research psychologists. This staff monitors the Federal civil service system for 

emerging trends and issues related to the merit system and human resource 

management. Through these efforts, augmented by suggestions from agency 

officials, public interest groups, employee unions, and concerned individuals, the 

Board develops its research agenda. 

The Board's governmentwide studies are conducted through a variety of 

research methodologies including mail and telephone survey research, on-site 

systems reviews, written interrogatories, formal round table discussions with 

subject matter experts, computer based data analysis, and review of secondary 

source material. Using these methods, the Board has issued a cost efficient 

series of special study reports on a wide variety of topics. 

Many of the Board's studies have been "first of their kind" examining subject 

matters from specific prohibited personnel practices (e.g., sexual harassment and 

reprisals for whistleblowing) to broad issues affecting the merit system (e.g., 

employee selection, retention, and compensation). Several topics or issues have 

been reviewed on more than one occasion, allowing the Board to develop timeline 

data to conduct trend analyses on the impact of the Civil Service Reform Act. 

The Board's studies are an important addition to the public policy discussions 

concerning civil service matters and a number of the Board's reports have been 

quoted as authoritative. These studies add the Board's expertise to the ongoing 

debate on important public policy issues dealing with the civil service. 
Outreach 

During Fiscal Year 1986, Board officials from the Regional Offices and 

Headquarters delivered over 100 speeches at meetings and conferences attended 

by more than 7,500 participants. These included conferences of the U.S. Court of 

Appeals for the Federal Circuit, programs for government personnel officers, and 

Federal employee union conventions. 
APPENDIX A 

REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* 

TYPE OF CASE AND CLOSING ACTION FY 1986 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action 

Reduction in 

Force 

Probationers 

Termingtion 

Acceptable

Level of 

Competence 

Disability 

Retirement 

Legal 

Retirement Other Total 

OPM 

Affirm Action 2 1 133 265 303 704 

Reverse-Procedures 8 4 5 17 

Reverse-Merits 109 89 76 274 

Reverse- 0 

Mitigated 4 4 

Settlement 3 1 10 10 21 45 

Dismissed 1 109 146 163 419 

Other 4 7 11 22 

TOTALS 6 0 0 2 373 521 583 1,485 

POSTAL SERVICE 

Affirm Action 271 1 1 273 

Reverse-Procedures 7 7 

Reverse-Merits 63 7 70 

Reverse- 10 10 

Mitigated 21 21 

Settlement 321 1 7 329 

Dismissed 549 2 1 1 1 150 704 

Other 1 1 

TOTALS 1,243 3 1 1 0 2 165 1,415 

NAVY 

Affirm Action 150 9 2 8 19 188 

Reverse-Procedures 8 1 9 

Reverse-Merits 21 3 1 6 31 

Reverse- 2 1 3 

Mitigated 16 16 

Settlement 112 4 3 2 12 133 

Dismissed 168 23 77 5 67 340 

Other 4 1 5 

TOTALS 481 36 83 18 0 1 106 725 

*Over 50 cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* TYPE 

OF CASE AND CLOSING ACTION FY 1986—Continued 

TYPE OF CASE 

AGENCY—ACTION 

Adverse 

Action

Reduction in 

Force

Probationers 

Termination

Acceptable 

Level of 

Competence

Disability 

Retirement

Legal 

Retirement

Other Total

ARMY 

Affirm Action 173 12 1 3 27 216

Reverse-Procedures 5 2 1 8

Reverse-Merits 21 1 2 9 33

Reverse- 1 1

Mitigated 14 14

Settlement 66 5 3 16 90

Dismissed 114 20 78 7 95 314

Other 1 1

TOTALS 395 38 79 17 0 0 148 677

VETERANS 

ADMINISTRATION

Affirm Action 100 1 4 1 16 122

Reverse-Procedures 4 4

Reverse-Merits 18 1 4 23

Reverse- 2 2

Mitigated 12 12

Settlement 62 5 2 2 9 80

Dismissed 115 3 64 8 59 249

Other 1 1

TOTALS 314 9 70 12 0 0 88 493

AIR FORCE 

Affirm Action 96 4 1 2 1 30 134

Reverse-Procedures 0

Reverse-Merits 17 1 2 20

Reverse- 3 3

Mitigated 7 7

Settlement 48 1 1 7 57

Dismissed 59 2 45 2 37 145

Other 0

TOTALS 230 6 47 6 0 1 76 366

*Over 50 cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* TYPE 

OF CASE AND CLOSING ACTION FY 1986—Continued 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action 

Reduction in 

Force 

Probationers 

Termingtion 

Acceptable 

Level of 

Competence 

Disability 

Retirement 

Legal 

Retirement 

Other Total 

JUSTICE 

Affirm Action 38 3 1 11 53

Reverse-Procedures 2 1 1 4

Reverse-Merits 13 3 16

Reverse-Discrimination 0

Mitigated 6 6

Settlement 28 1 1 1 31

Dismissed 27 4 52 2 18 103

Other 0

TOTALS 114 8 55 2 0 0 34 213

DOD 

Affirm Action 39 2 7 48

Reverse-Procedures 1 1

Reverse-Merits 4 4

Reverse-Discrimination 0

Mitigated 1 1

Settlement 31 1 1 33

Dismissed 41 1 39 2 20 103

Other 1 1

TOTALS 117 3 39 3 0 0 29 191

AGRICULTURE 

Affirm Action 17 4 2 23

Reverse-Procedures 4 4

Reverse-Merits 3 1 2 6

Reverse-Discrimination 0

Mitigated 2

Settlement 17 3 1 3 5 29

Dismissed 34 25 27 17 103

Other 0

TOTALS 77 32 28 4 0 0 26 167

*Over 50 cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* TYPE 

OF CASE AND CLOSING ACTION FY 1986—Continued 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action 

Reduci 

tion in 

Force 

Probationers 

Termingtion 

Accepts-

• 

ble 

Level of 

CompeDisability 

Retirement 

Legal 

Retirement 

Other Total 

TREASURY 

Affirm Action 20 1 10 31

Reverse-Procedures 1 1

Reverse-Merits 1 2 3

Reverse-Discrimination 1 1

Mitigated 0

Settlement 17 1 1 2 2 23

Dismissed 36 4 28 4 18 90

Other 1 1

TOTALS 76 5 30 7 0 0 32 150

HHS 

Affirm Action 21 1 17 39

Reverse-Procedures 1 1 2

Reverse-Merits 1 3 4

Reverse-Discrimination 1 1

Mitigated 1 1

Settlement 12 1 1 11 25

Dismissed 24 6 6 7 26 69

Other 0

TOTALS 61 7 6 9 0 0 58 141

TRANSPORTATION 

Affirm Action 29 5 1 7 42

Reverse-Procedures 3 3

Reverse-Merits 7 1 8

Reverse-Discrimination 2 2

Mitigated 1 1

Settlement 15 1 2 3 21

Dismissed 25 1 15 2 19 62

Other 0

TOTALS 82 8 16 4 0 0 29 139

*Over 50 cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* TYPE 

OF CASE AND CLOSING ACTION FY 1986—Continued 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action 

Reduction in 

Force 

Proba-

• 

tioners 

Terminginat

Accepable 

Level of 

CompeDisability 

Retirement 

Legal 

Retirement Other Total 

TENNESSEE VALLEY 

AUTHORITY 

Affirm Action 17 33 50

Reverse-Procedures 0

Reverse-Merits 2 3 5

Reverse-Discrimination 0

Mitigated 0

Settlement 7 2 9

Dismissed 17 28 29 74

Other 0

TOTALS 43 66 0 0 0 0 29 138

INTERIOR 

Affirm Action 18 6 1 5 30

Reverse-Procedures 0

Reverse-Merits 3 1 4

Reverse-Discrimination 0

Mitigated 4 4

Settlement 13 1 5 19

Dismissed 19 6 10 3 12 50

Other 0

TOTALS 57 13 10 4 0 0 23 107

EEOC 

Affirm Action 6 2 1 3 12

Reverse-Procedures 0

Reverse-Merits 2 2

Reverse-Discrimination 0

Mitigated 1 1

Settlement 4 1 5

Dismissed 8 20 2 19 49

Other 0

TOTALS 21 22 2 1 0 0 23 69

*Over 50 cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY AGENCY,* TYPE 

OF CASE AND CLOSING ACTION FY 1986—Continued 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action

Reduction in 

Force

Probationers 

Termination

Acceptable 

Level of 

Compefence

Disability 

Retirement

Legal 

Retirement Other Total

GSA 

Affirm Action 18 8 1 27

Reverse-Procedures 1 1

Reverse-Merits 1 1

Reverse-Discrimination 0

Mitigated 0

Settlement 5 1 1 7

Dismissed 15 5 6 1 5 32

Other 0

TOTALS 

39 15 6 1 0 0 7 68

16 AGENCY TOTALS 

Affirm Action 1,015 89 10 19 133 267 459 1,1992

Reverse-Procedures 35 3 2 8 4 9 61

Reverse-Merits 176 6 8 109 90 115 504

Reverse-Discrimination 22 1 23

Mitigated 86 4 90

Settlement 761 26 9 18 10 10 102 936

Dismissed 1,252 150 450 44 109 147 754 2,906

Other 9 4 7 12 32

TOTALS 

3,356 271 472 91 373 525 1,456 6,544

ALL OTHER 

AGENCIES 

Affirm Action 35 8 2 5 9 59

Reverse-Procedures 2 1 1 2 6

Reverse-Merits 2 2 1 1 6

Reverse-Discrimination 0

Mitigated 3 3

Settlement 22 8 2 5 11 48

Dismissed 52 23 31 5 1 68 180

Other 2 1 3

TOTALS 

118 42 35 17 0 2 91 305

*Over 50 

cases. 
REGIONAL OFFICE DECISIONS ON INITIAL APPEALS BY TYPE OF CASE 

AND CLOSING ACTION FY 1986 

TYPE OF CASE 

AGENCY—ACTION Adverse 

Action 

Reduction in 

Force 

Probationers 

Termination 

Acceptsble 

Level of 

Level 

Competence 

Disability 

Retirement 

Legal 

ment Other Total 

TOTAL ALL 

AGENCIES 

Affirm Action 1,050 97 12 24 133 267 468 2,051

Reverse-Procedures 37 1 3 3 8 4 11 67

Reverse-Merits 178 8 8 109 91 116 510

Reverse- 22 1 23

Mitigated 89 4 93

Settlement 783 34 11 23 10 10 113 984

Dismissed 1,304 173 481 49 109 148 822 3,086

Other 11 1 4 7 12 35

GRAND TOTALS 3,474 313 507 108 373 527 1,547 6,849
APPENDIX B 

Significant Board Decisions 

Significant cases decided by the Board during Fiscal Year 1986 included the 

following: 

Jurisdiction 

Appling v. Social Security Administration, HQ75218510001 (April 8, 1986). 

The Board found that labor unions have no independent right to seek Board review 

of an arbitrator's decision because 5 U.S.C. § 7121(d) entitles only "an aggrieved 

employee" to seek such review. 

Passmore v. Department of Transportation, SL07528510177 (June 13, 

1986). 

The Board held that when an employee is placed on enforced leave pending inquiry 

or where retention in a duty status would be injurious to the employee, his fellow 

workers or the public, the enforced leave constitutes an appealable suspension 

regardless of whether the employee is otherwise ready, willing, and able to work. 

Arbitration Awards 

Robinson v. Department of Health and Human Services, HQ7128410007 (April 

8, 1986). 

The Board determined that it would only provide a record review of arbitration 

awards under 5 U.S.C. § 7121 and held that such awards would only be set aside or 

modified if the arbitrator erred in interpreting civil service law, rule or regulation. 

Denson v. Veterans Administration, HQ71218410020 (April 8, 1986). 

The Board held that employees who request review of arbitration decisions under 5 

U.S.C. § 7121 are not required to submit a verbatim record of the arbitration 

hearing; the Board's decision will be based on the documentary record submitted 

to it. The Board determined that it will require that requests for reviewinclude a 

statement of the grounds for review, evidence or rulings bearing on those issues, 

arguments with specific references to documents and authority, legible copies of 

the award, and other pertinent documents. 

Handicap Discrimination 

Washington v. Department of Navy, SF07528510827 (April 2, 1986). 

The Board found that the agency reasonably accommodated the employee's 

alcoholism when, after proposing his removal, it rescinded the proposal and 

referred him to counseling. However when the employee refused to attend such 

counseling sessions, it was not discriminatory for the agency to remove him. 

Green v. Department of Air Force, CH07528610143 (July 1, 1986). 

The Board found that the agency was required to provide accommodation for the 
employee's drug addiction by allowing her to participate in, and complete, a 

rehabilitation program before removing her from her position of clinical nurse. In 

reaching this conclusion, the Board declined to apply to the employee the holding of 

Kulling v. DOT, which concerned air traffic controllers. 

Senior Executive Service 

Berube v. General Services Administration, DC07528410055 (May 20, 

1986). 

The Board held that members of the Senior Executive Service could be removed 

on performance-related charges under 5 U.S.C. § 7543 if the underlying conduct 

rose to the level of "misconduct, neglect of duty, or malfeasance." 

Retirement 

Briggs v. Office of Personnel Management, NY08318510356 (March 10, 

1986). 

The Board found that the Uniform Code of Military Justice constituted a "criminal 

law of the United States" under 5 U.S.C. § 8331(20). Therefore, a criminal 

investigator with the Department of the Air Force was entitled to law enforcement 

retirement credit since the position required him to investigate and apprehend 

individuals suspected or convicted of violations of the Uniform Code of Military 

Justice. 

Attorney Fees 

Nadolney v. Environmental Protection Agency, DC531D84A0302 (May 9, 

1986). 

The Board held that an employee who prevailed before the Board is entitled to 

attorney fees for work performed in connection with an earlier personnel action 

when the two actions are factually related and the time expended on the first action 

was useful to the Board appeal and of the type ordinarily necessary. 

Lewis v. Department of Army, DE075285A0187 (August 19, 1986). 

The Board held that it has no authority to award attorney fees to agencies, either 

under 5 U.S.C. § 7701(g) or as a sanction imposed under the Board's regulatory 

authority, in cases where an appellant has exercised a right of appeal granted by 

law, rule, or regulation. 

Young v. Department of Air Force, DE04328410193ADD (January 8, 1986). 

The Board held that it has the authority to award attorney fees for work performed 

on an equal employment opportunity complaint that was later appealed to the 

Board under 5 U.S.C. § 7521. 

Bartel v. Federal Aviation Administration, PH035380A9002 (April 15, 1986). 

The Board held that it has the authority to award attorney fees for work performed 

in appealing a Board decision to EEOC under 5 U.S.C. § 7702. In addition, an 

employee who ha: prevailed on the issue of reprisal for EEO activities is entitled to 
attorney fees under 5 U.S.C. § 7701(g)(2). 

Simmons v. Office of Personnel Management, DC831L80A0132-1 (September 

8, 1986). 

The Board set forth the standards to be used in determining whether attorney fees 

would be awardable in retirement-related matters. 

Obremski v. Office of Personnel Management, DC083180A0336 (September 

8, 1986). 

The Board held that attorney fees should be awarded in legal retirement cases 

where the 

Board finds that the agency based its case on incredible or unspecific evidence or 

reasoning fully countered by the record. The Board reasoned that the agency's 

denial of benefits or credit, in the absence of justifiable reasons supported by 

specific credible evidence or analysis, results in the expenditure of unnecessary 

fees by the applicant, and that such fees should be reimbursed. 

Enforcement 

Mann v. Veterans Administration, NY07528510034COMP (November 8, 1985). 

In response to a final Board order to cancel the employee's removal and substitute 

a 60-day suspension, the agency restored the employee to her former position, but 

immediately detailed her to another position to which she was then permanently 

reassigned. The Board found the agency did not comply with the Board's order, 

holding that where an employee is not reinstated to his or her former position and 

the position still exists at the same grade and classification levels, the agency must 

show a strong overriding interest for not placing the employee in the former 

position. 

Special Counsel v. Filiberti and Dysthe, HQ12068310018COMP (December 10, 

1985). 

After the Board imposed 60-day suspensions on two employees of the Military 

Sealift Command, the Command requested that the employees be allowed to serve 

their suspensions sequentially. The Board agreed, but subsequently initiated a show 

cause proceeding to determine whether the Command should be sanctioned for 

intentionally concealing information that could have led the Board to deny the 

modification. The Board adopted the recommendation of the administrative law 

judge that no sanction was warranted because the information was not material 

and would not have affected the Board's grant of the modification. 

Benjamin v. U.S. Postal Service, DA07528410582COMP (January 7, 1986). 

The employee was removed from the Postal Service but was retained on the rolls 

in a non-duty, non-pay status pursuant to a collective bargaining agreement. 

Before his appeal was decided, he voluntarily resigned in order to obtain a refund 

of his retirement contributions. 
The Board reversed his removal. The agency paid him back pay only for the 

period from his removal to the date of his resignation and refused to reinstate 

him or pay him back pay for the period after his resignation. The Board found 

that the removal action constructively took effect on the effective date given in 

the agency's decision letter, and that the resignation after removal had no 

effect other than relinquishment of the employee's non-duty, non pay status. 

The decision thus found the agency in non-compliance and ordered the 

employee's reinstatement with back pay from the date of hi; removal to the 

date of his reinstatement. 

Myers v. Department of Agriculture, SF07528410396COMP (December 5, 

1985). 

Under the terms of a settlement agreement between a removed employee and 

the agency, the agency agreed to give the employee "strong consideration" 

whenever he applied for positions in the agency. Upon the employee's petition 

for enforcement of the settlement agreement, the Board found that the 

agency's action in giving the employee's application the same consideration as 

any other applicant did not constitute compliance with the agreement. Because 

it was not clear whether the employee would have been selected for any of the 

jobs, the Board ordered the retroactive reconstruction of the selection process. 

O'Reilly v. Department of Transportation, PH075281F0871COMP (December 

5, 1985). 

In this case involving the amount of back pay due a wrongfully removed air 

traffic controller, the Board held that overtime payments may be computed on 

the basis of the employee's prior overtime assignments or on the experience of 

similar employees who were not removed during the relevant period. The Board 

found that the agency relied on the latter method and that its consideration of 

the overtime experiences of all full-time non-supervisory controllers was proper. 

Smith v. U.S. Postal Service, NY075285C0166 (May 2, 1986). 

As part of a settlement agreement, the employee agreed to take a 

psychological fitness for duty examination, and the parties agreed to be bound 

by the results. The psychiatrist concluded that the employee should undergo 

twice-weekly treatments for six months to a year. The Board found that the 

employee'srefusal to undergo such therapy constituted bad faith and a breach 

of the agreement, which justified the agency's refusal to restore him to the 

position from which he had been removed. It also noted that his subsequent 

disruptive behavior provided further justification for the agency's reassignment 

of him to another position. 

Papa v. U.S. Postal Service, PH075285C0495 (September 4, 1986). 

The Board found that under the agency's regulations, the employee was not 

obligated to mitigate the Board's back pay award by seeking other employment 

during the pendency of his appeal to the Board. 
Requests for Reconsideration by the Office of Personnel 

Management 

Schuck and Washington v. U.S. Postal Service, CH07528410682COMP (May 

13, 1986). 

The Board denied OPM's petition for reconsideration of the Board's prior 

decision finding the employees had been improperly furloughed by the agency 

when they were placed in a non-pay, non-duty status. The Board found that, 

although the occasional placement of an employee in a non-duty, non-pay 

status consistent with the terms of his appointment is not an appealable action, 

OPM failed to show that such placement was consistent with the terms of the 

employees' appointments. 

ORIGINAL JURISDICTION 

Special Counsel Cases 

Stay Requests 

Special Counsel v. Peace Corps, HQ12088610008 (July 11, 1986). 

After temporarily staying the removal and reassignment of the Country 

Director for the Peace Corps in Malawi, Africa, the Board declined to extend 

the stay on jurisdictional grounds. The Board found that the Country Director 

position is excluded from prohibited personnel practice coverage because it is 

a "confidential or policymaking" position within the meaning of 5 U.S.C. § 

2302(a)(2)(B)(i). 

Special Counsel v. U.S. Customs Service, HQ12088610022 (September 

10, 1986). 

The Board granted the Special Counsel's request for a 90-day extension of the 

Board's previous stay orders staying the removal of the Regional Commissioner 

for the Northeast Region of the U.S. Customs Service. In reaching its 

conclusion, the Board noted that while there was an escalating obligation to 

review each additional stay extension request, there is no requirement that the 

Special Counsel submit new and additional evidence each time an extension is 

requested. The Board also found that consideration of the Special Counsel's 

chances of success in any subsequent corrective action was not appropriate in 

determining whether to extend a stay where the investigation has not yet been 

completed. 

Hatch Act Cases 

Special Counsel v. Carney, HQ12068510030 (June 4 1986). 

The Board adopted the recommendation of the Chief Administrative Law Judge 

and found that appellant knowingly violated the Hatch Act by running as a 

Democrat for Mayor of Biloxi, Mississippi, despite the contrary advice of his 

employer and the Special Counsel. The Board ordered appellant removed from 

his position with the Department of the Air Force. 
Review of Regulations of the Office of Personnel 

Management 

Pursuant to 5 U.S.C. § 1205(e), the Board is required to review rules and 

regulations of the Office of Personnel Management and their implementation in 

order to ensure against the commission of prohibited personnel practices. The 

Board issued the following three decisions based on requests by individuals or 

organizations to review certain OPM rules and regulations. 

Larson v, OPM, HQ12068510028 (November 21, 1985). 

The Board denied the petition to review OPM's implementation of section 2601 

of the Deficit Reduction Act of 1984. That section provides that Federal 

employees hired after December 31, 1983, are subject to Social Security 

withholding unless they return to a covered retirement system position after a 

break in service of less than 366 consecutive days. The Board found that the 

request for review did not sufficiently establish a likelihood that a prohibited 

personnel practice had been committed in OPM's implementation of the 

regulation. 

National Council of Field Assessment Locals v. Department of Health and 

Human Services, HQ12058510002 (January 16, 1986). 

The Board declined to exercise its authority under 5 U.S.C. § 1205(e) to review 

certain performance standards, finding that it was likely that the Board would 

be presented with the same issue through the normal appellate channels and 

that the employee failed to present an actual controversy to show the agency's 

allegedly invalid implementation of the standards. 

Johnson v. U.S. Customs Service, HQ12058610013 (June 18, 1986). 

The Board declined to exercise its authority to review the agency's 

implementation of OPM Handbook X-118, which the employee contended was 

violated by his reassignment. The Board found that because there was little 

likelihood of success on the merits, and since the employee could have 

challenged his reassignment through a grievance, it would not hear the case. 
APPENDIX C 

Special Panel 

During Fiscal Year 1986 the Special Panel issued its first two decisions: 

Ignacio v. U.S. Postal Service (February 27, 1986). 

In a split decision, the Special Panel held that Federal agencies must consider 

reassignment as a reasonable accommodation for physically handicapped 

employees prior to taking a removal action. The majority held that the decision 

of the EEOC, requiring consideration of reassignment prior to removal, is 

reasonableand consistent with the Rehabilitation Act. The majority set forth its 

view of the Panel's jurisdiction in reviewing cases certified to it. 

Lynch v. Department of Education (August 22, 1986). 

The Special Panel in a split decision adopted the Board's opinion that removal of 

a handicapped employee was lawful because the agency had attempted to 

accommodate the employee's handicap and the medication used to treat it. The 

majority of the Panel held that the agency was not required to provide training 

to the employee as an accommodation where there was no indication that 

training would improve the employee's performance. 
APPENDIX D 

Significant 

Litigation 

The Board is the respondent agency in civil actions brought in connection with 

any function carried out by the Board except final orders or decisions issued 

under the Board's appellate jurisdiction. This authority includes original 

jurisdiction appeals, jurisdictional issues, attorney fees and timeliness issues. 

Appendix D is a report of the Board's significant litigation activities during Fiscal 

Year 1986. 

Supreme Court Litigation 

Lovshin v. Department of the Navy. 

The Board filed a brief in support of a petition for writ of certiorari. The 

petitioner sought reversal of the decision of the appeals court (reported at 767 

F.2d 826), holding that either Chapter 43 or Chapter 75 is available to an 

agency to remove or demote an employee for performance-based reasons. The 

Supreme Court by a 6-3 vote denied review of the appeal. 

Huber v. Merit Systems Protection Board. 

The Board opposed a petition for a writ of certiorari from the decision of the 

appeals court (reported at 793 F.2d 284), which affirmed the Board's ruling that 

an agency may separate excepted service, non-preference eligibles at any time, 

with or without cause, and that the Board is without jurisdiction to hear any 

appeal from such action. The agency's mistake in characterizing its actions as 

an appealable reduction in force did not affect whether the Board had 

jurisdiction. 

Intervention in OPM-Initiated Litigation 

Homer v. Burns and Werts, 783 F.2d 196 (Fed. Cir. 1986). 

The Court agreed with the Board that an issue cannot be raised before the 

Board through a response to a petition for review, but must be raised in a 

cross-petition. The Court also agreed with the Board's view that initial decisions 

donot have precedential value, and thus, do not have a "significant impact upon 

civil service laws" sufficient to warrant the pursuit of judicial review by OPM. 

Horner v. Andrzjewski (Pending Federal Circuit decision) 

This case involved the issue of whether the Board properly invalidated the 

emergency furlough regulation. The case remained pending at the conclusion 

of Fiscal Year 1986. 
Horner v. Acosta, et al. (Pending Federal Circuit decision) 

This appeal involved the question of whether an individual engaged in a 

personal services contract with the Federal Government is entitled to service 

credit for retirement purposes. 

Horner v. Schuck and Washington (Pending Federal Circuit decision) 

OPM sought review of a Board decision which interpreted the Postal Service's 

collective bargaining agreement in reaching its determination that the 

employees had been furloughed without proper procedures. The Board 

intervened, arguing that the court has no jurisdiction over a "mixed case" 

appeal and that OPM's right to seek judicial review does not encompass 

disagreements over the interpretation of a collective bargaining agreement. 

Horner v. Merit Systems Protection Board (Pending Federal Circuit decision) 

OPM challenged the Board's decision finding that the Special Counsel has the 

authority under 5 U.S.C. § 1206( e)(1)(D) to investigate and prosecute 

violations of the government's ethics laws and regulations. The Board opposed 

the petition, arguing that section 1206(e)(1)(D) is not a civil service law, rule, 

or regulation which falls under the purview of OPM, but rather is interpreted 

exclusively by the Special Counsel and the Board. The Court ordered all parties 

to brief the jurisdictional issues raised by this case. 

Special Counsel-Related Litigation 

Filiberti and Dysthe v. Merit Systems Protection Board (Pending 9th Circuit 

decision) 

Two high-level personnel officers challenged the Board's determination that 

they committed a prohibited personnel practice by influencing a disabled 

veteran applicant to withdraw from competition in order to secure the mistaken 

appointment of a nonveteran. Also at issue was the scope of the Board's 

enforcement authority, including authority to modify penalties. The litigation 

remained pending at the close of the year. 

Starrett v. Special Counsel, 792 F.2d 1246 (4th Cir. 1986) 

The Court held that substantial evidence did not support the Board's finding 

that the Director of the Defense Contract Audit Agency retaliated against one of 

his subordinate auditors for whistleblowing. 

Harvey v. Merit Systems Protection Board, 802 F.2d 537 (D.C. Cir. 1986). 

The Court held that the facts did not support the Board's finding that Harvey 

had committed several prohibited personnel practices in connection with his 

effort to relieve a subordinate of his duties. Therefore, the Court reversed the 

Board's demotion of Harvey from his Senior Executive Service position. 
Jurisdiction 

Miller v. Merit Systems Protection Board, 794 F.2d 660 (Fed. Cir. 1986). 

The Court affirmed the Board's decision that it lacks jurisdiction over an 

agency's withdrawal of a job offer when the employee at one agency never 

entered on duty at a new agency. 

Enforcement 

Weimers v. Merit Systems Protection Board, 792 F.2d 1113 (Fed. Cir. 1986). 

The petitioner appealed the Board's denial of a request for enforcement of a 

Board order affirming an indefinite suspension pending disposition of a criminal 

case against him. The petitioner contended that he was entitled to 

reinstatement and backpay because his criminal conviction was reversed on 

appeal. The Courtaffirmed the Board's decision that petitioner was not entitled 

to any relief because the agency had removed petitioner for the conduct 

underlying the criminal charges before his conviction was reversed on appeal. 

Timeliness of Appeal 

Duncan v. Merit Systems Protection Board, 795 F.2d 1000 (Fed. Cir. 1986). 

The employee withdrew his appeal from the Board after he filed a grievance of 

his removal. When the grievance was dismissed, he attempted to renew his 

appeal with the Board. The Court affirmed the Board's decision finding that the 

employee's attempted renewal was untimely and that seeking relief through 

arbitration did not constitute good cause for the delayed appeal. 

Attorney Fees 

Wise v. Merit Systems Protection Board, 780 F.2d 997 (Fed. Cir. 1985). 

In an attorney fee case interpreting the interest of justice standards, the Court 

found that an employee cannot be substantially innocent of the personnel 

charges against him, even though he is ultimately vindicated before the Board, 

if he deliberately withholds from the agency's deciding official evidence that 

would have exonerated him. 

Van Fossen v. Merit Systems Protection Board, 788 F.2d 748 (Fed. Cir. 1986). 

The Court held that an award of attorney' fees was warranted in the interest of 

justice under the "substantially innocent" standard because the charges, though 

sustained, were insignificant, and because petitioner succeeded in having his 

removal reduced to a relatively short suspension. 

Quality Review 

Fuller v. United States, No. 84-1699 (D.D.C. Dec. 19, 1985). 

In upholding the Board's removal of an employee, the Court stated that the 

Board's quality review program, instituted to improve the quality of initial 

decisions, is not offensive nor contrary to statute. 
APPENDIX E 

Special Studies 

The following is a summary of the major findings and recommendations from 

special study reports issued by the Board in Fiscal Year 1986, The reports 

summarized below include a special study of the efforts made by various 

Federal agencies to seek employee involvement in improving Federal 

management; an annual analysis of MSPB appeals decisions; and an indepth 

annual oversight report on the significant actions of the Office of Personnel 

Management. 

1. Getting Involved: Improving Federal Management with Employee 

Participation. This study focuses on the successful efforts of 22 of the Federal 

Government's largest agencies to involve employees in improving operations. 

The report discusses unique programs as well as more commonly used 

approaches such as quality circles, suggestion programs, and hotlines. 

Alternatives for employees who might otherwise see "whistle-blowing" as their 

only means to share information about fraud, waste, or abuse were identified. 

Most of the agencies provided examples demonstrating that their employee 

involvement systems were beneficial and cost-effective. Although systems and 

procedures varied among agencies, the more effective programs shared the 

following elements: 

• top management commitment; 

• middle and first line supervisory support; 

• sufficient allocation of resources; 

• good communications; 

• a willingness to deal with results in good faith; 

• feedback to employees; 

• positive reinforcement (no reprisals) to employee participants; and 

• periodic program assessment and refinement. 

Based on the effective programs identified by the study, the Board 

recommends that Federal managers be encouraged to start or revitalize 

employee involvement systems incorporating elements of other successful 

programs. 

2. Study of MSPB Appeals Decisions for Fiscal Year 1985. This report 

provides detailed information on MSPB regional and headquarters appeal 

decisions in Fiscal Year 1985. The report lists categories of appeals in many 

formats including appeal type, outcome, Federal agency, and MSPB regional 

jurisdiction. A 5-year trend analysis of appeals was included to illustrate a longrange view of MSPB's appellate workload and related decisions. 

3. Report on the Significant Actions of the Office of Personnel 

Management (OPM). OPM has the major role in managing government-wide 

personnel policies and programs. This annual MSPB report focuses on (a) the 
Federal Government's ability to attract and retain a quality workforce; (b) the 

Federal "grade bulge" problem; and (c) OPM's revised program for evaluating 

Federal personnel management. 

a. Attracting and Retaining a Quality Workforce. This part of the review 

evaluated 6 aspects related to attracting a quality workforce. 

(1)College Recruiting. The review found that Federal agency success in 

attracting enough graduates for entry level positions varies by occupation. 

Agencies reported that prospects for hiring well qualified graduates were good 

for some occupations (e.g., attorneys) and relatively poor for others (e.g., 

computer scientists and engineers). Factors which made it difficult to attract 

graduates for some occupations were lower Federal pay rates and a poor image 

of the Federal Government as an employer. The Board recommends that OPM 

consider new or different approaches to overcoming these negative factors, 

such as an expanded approach to the use of special salary rate procedures for 

hard-to-fill occupations. 

(2)Entry-Level Professional and Administrative Career Hiring. This part of 

the review was a follow-up to the Board's earlier evaluations of how the Federal 

Government selects candidates from outside government for GS-5 or GS-7 

entry level positions. The 118 career occupations reviewed were once covered 

by the Professional and Administrative Career Examination (PACE) until it was 

eliminated by a consent decree.

As an alternative to PACE, OPM has granted agencies a special "Schedule B" 

appointment authority. Employees hired under this excepted appointment 

authority are not given career status and may not be promoted above the GS-7 

level. They may, however, "compete" with other candidates for career GS-9 

positions in the competitive service. The review revealed that, through March 

1985, Schedule B employees "competing" for these GS-9 positions, were 

selected in 99.9 per cent of the cases. The report recommends that OPM 

replace the PACE with more effective alternative examinations to ensure merit 

system competitiveness. 

(3) White-Collar Pay. This part of the report enumerates the many 

complexities that the Government faces in determining a fair pay range for 

white-collar employees, and presents an overview of studies on the subject. 

Although there appears to be no "quick fix" solution available, there are some 

approaches that are arguably better than others. The use of "quit rates" to 

determine compensation, for example, holds less merit than a re-weighting of 

the current data used to determine Federal pay comparability with the private 

sector. 

(4)Senior Executive Service (SES) Candidate Development Programs. The 

report shows that agency selection procedures and costs for formal SES 

candidate development programs vary considerably. There is little relationship 

between costs and placement rates, and graduates of candidate development 

programs constitute only 9 per cent of all new career SES members. 
The Board recommends that agency use of candidate development programs be 

reconsidered given their relatively high costs and apparently low contribution to 

actual SES appointments. Additionally, it was recommended that agency 

selection procedures be analyzed to identify factors resulting in disparate 

placement rates. 

(5)The Senior Executive Service (SES) in 1984. The report shows that SES 

turnover hasheld stable since 1982 at an average of 8 per cent or less but that 

career losses have been higher among charter members (1979) than among 

new members. Turnover patterns since 1979 indicate that retirement rates are 

directly affected by tangible changes in retirement benefits. The report also 

found that the number of SES bonuses increased but the dollar amount of the 

average bonus decreased. Legislative changes in 1984 appear to have resulted 

in some improvement to the SES incentive programs. 

(6) Expanded Authority to Make Temporary Limited Appointments. At the 

end of 1984, OPM extended authority to individual agencies to make temporary 

limited appointments up to 4 years, and to raise the grade levels covered from 

GS-7 to GS-12. The Board did not identify any current problems with this 

delegation. However, given the potential for abuse or misuse of temporary 

appointment authority, specific guidance to agencies regarding the use of the 

authority was recommended. The report suggests that OPM evaluate the use of 

this authority for at least 3 years and consider ways to make temporary 

employment more attractive for potential candidates. 

b. The Office of Personnel Management (OPM) and Office of 

Management and Budget (OMB) Grade Bulge Initiative. This part of the 

report looks at the OPM/OMB effort to improve the Federal Government's 

position management by reducing the number of positions in pay grades 11 

through 15. OPM was responsible for presenting recommendations to OMB 

regarding potential budget savings tied to reducing the size of each agency's 

"bulge" at the higher-grades. The report shows that the OPM's approach 

produced results that seem to conflict with the original objective: 

• some agencies that had experienced the greatest increase in GS-11 

through 15 positions were targeted for the least reduction in those grades; 

and 

• other agencies with either little growth or actual reduction in the number of 

positions at grades 11 through 15 were identified by OPM for proportionately 

greater reductions. 

The Board's report suggests that OPM's statistical approach to the "grade bulge" 

is a possible problem. The Board recommends a less complex approach to the 

"grade bulge" problem, such as assisting agencies to develop strong position 

management programs and revitalizing the Federal classification and 

compensation systems. 

c. The Office of Personnel Management (OPM) Evaluation Program. This 

represents the Board's second analysis of major changes in how OPM evaluates 

Federal Government personnel management. The OPM revised its approach in 

1983 from one emphasizing onsite visits to one emphasizing statistical analysis. 

The report identifies several deficiencies with OPM's current evaluation 

strategies, and questions theeffectiveness and reliability of the results thus far. 
The report concludes that OPM's ability to evaluate agency personnel 

management has been reduced at the same time that agencies have been 

delegated more authority. The Board recommends that OPM continue to 

monitor closely its new approach for at least 2 years, issue updated FPM 

guidance, and again conduct some indepth onsite agency reviews. Increased 

involvement in agency-led onsite reviews and improved monitoring of agency 

personnel management evaluation programs were also suggested.