U.S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, DC 20419 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

In accordance with 5 U.S.C. § 1206, we are pleased to submit the Fifteenth 

Annual Report of the U.S. Merit Systems Protection Board. The report reviews the 

significant activities of the Board during Fiscal Year 1993. It also includes statistical 

information regarding the Federal employee appeals and other cases decided by 

the Board. 

During the fiscal year, the Board's administrative judges issued 7,811 

decisions on appeals, stay requests, and addendum cases. The 3-member 

bipartisan Board issued 1,576 decisions on petitions for review (PFRs) of 

administrative judges' decisions and in other appellate cases. The Board also issued 

37 decisions in cases arising under its original jurisdiction—Hatch Act cases, Special 

Counsel stay requests, proposed actions against administrative law judges, and 

requests to review regulations of the Office of Personnel Management (OPM). 

The Board's decisions continue to be upheld by the U.S. Court of Appeals for 

the Federal Circuit to a significant extent. Of the final Board decisions reviewed by 

the court in Fiscal Year 1993, 95 percent were unchanged by the court's decisions. 

With respect to its statutory mission to conduct studies of the merit systems 

and to review the significant actions of OPM, the Board completed seven reports 

during the fiscal year, including an update of its 1983 report on whistleblowing in 

the Federal Government and a report on the role of Federal personnel offices. 

Respectfully submitted, 

Ben L. Erdreich

Chairman 

Antonio C. Amador

Member

Jessica L. Parks 

Vice Chairman
TABLE OF CONTENTS 

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

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

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

REGIONAL OFFICIALS ............................................................................ 13 

REGIONAL OFFICE JURISDICTIONS .......................................................... 14 

KINDS OF CASES AND HIGHLIGHTS 

OF CASES DECIDED IN FY 1993............................................................... 15 

ADJUDICATION: APPELLATE JURISDICTION............................................... 20 

ADJUDICATION: ORIGINAL JURISDICTION ................................................ 26 

LITIGATION .......................................................................................... 28 

MERIT SYSTEMS STUDIES AND 

REVIEWS OF OPM SIGNIFICANT ACTIONS................................................. 29 

OUTREACH ACTIVITIES .......................................................................... 32 

ADMINISTRATION, FINANCE, AND 

HUMAN RESOURCES .............................................................................. 35 

APPENDIX A - CASE PROCESSING STATISTICS .......................................... 38 

APPENDIX B - SIGNIFICANT BOARD DECISIONS 

APPELLATE JURISDICTION CASES ............................................................ 54 

APPENDIX C - SIGNIFICANT BOARD DECISIONS 

ORIGINAL JURISDICTION CASES ............................................................. 62 

APPENDIX D - SIGNIFICANT LITIGATION .................................................. 67 

APPENDIX E - MERIT SYSTEMS STUDIES AND 

REVIEWS OF OPM SIGNIFICANT ACTIONS................................................. 71 
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 No. 95454, as a successor 

agency to the Civil Service Commission. It is an independent, quasi-judicial 

agency in the Executive Branch that serves as the guardian of Federal merit 

systems. 

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

against abuses by agency management, that Executive Branch agencies make 

employment decisions in accordance with the merit system principles, and that 

Federal merit systems are kept free of prohibited personnel practices. The Board 

accomplishes its mission by: 

• Hearing and deciding employee appeals from agency personnel actions 

(appellate jurisdiction); 

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

abuses of the merit systems, and other cases arising under the Board's 

original jurisdiction; 

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

Executive Branch to determine whether they are free of prohibited personnel 

practices; and 

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

Personnel Management (OPM) to determine whether they are in accord with 

the merit system principles. 

JURISDICTION Appellate Jurisdiction 

The agency actions that Federal employees may appeal to the Board 

include: adverse actions (removals, suspensions of more than 14 days, 

reductions in grade or pay, and furloughs of 30 days or less), performance-based 

removals or reductions in grade, denials of within-grade increases, certain 

reduction in force (RIF) actions, denials of restoration to duty or reemployment 

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

recertified. Determinations by OPM in employment suitability and retirement 

matters are also appealable to the Board. 

When an issue of prohibited discrimination is raised in connection with an 

appealable action, the Board has jurisdiction over both the appealable action and 

the discrimination issue. Such appeals are termed "mixed cases." In these cases, 

an appellant may ask the Equal Employment Opportunity Commission (EEOC) to 

review the final decision of the Board. If the EEOC disagrees with the Board's 

decision on the discrimination issue, the case is returned to the Board. The Board 

may concur with EEOC, affirm its previous decision, or affirm its previous decision 

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

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

of a Chairman appointed by the President, one member of the Board, and one 
EEOC commissioner.) 

Under the Whistleblower Protection Act of 1989 (WPA), personnel actions 

that are not normally appealable to the Board may result in the right to a Board 

appeal under certain circumstances. Included are appointments, promotions, 

details, transfers, reassignments, and decisions concerning pay, benefits, awards, 

education, or training. Such an action may be appealed to the Board only if the, 

appellant alleges that the action was taken because of his or her whistleblowing, 

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

Counsel did not seek corrective action from the Board. 

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

jurisdiction over both the action and the individual filing the appeal. The 

employees and others (e.g., applicants for employment, annuitants in retirement 

cases) who may appeal specific actions vary in accordance with the law and 

regulations governing the specific action. For some actions, classes of employees, 

such as political appointees, and employees of specific agencies are excluded. 

Since the CSRA became effective, employees in the competitive service 

and preference eligible employees in the excepted service have had the right to 

appeal adverse actions to the Board. In 1987, non-preference eligible supervisors and managers in the Postal Service gained Board appeal rights for adverse 

actions. 

Under the 1990 Civil Service Due Process Amendments, approximately 

100,000 additional employees in the excepted service gained the right to appeal 

both adverse actions and performance-based actions to the Board. To be eligible 

to appeal, these excepted service employees must have completed two years 

current continuous service in an Executive agency. Employees in certain entities, 

including the Postal Service, the Federal Bureau of Investigation, and the intelligence agencies, are excluded from the coverage of this law. 

Original Jurisdiction 

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

• Corrective and disciplinary actions brought by the Special Counsel against 

agencies or Federal employees who are alleged to have committed prohibited 

personnel practices, or to have violated certain civil service laws, rules or 

regulations; 

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

result from prohibited personnel practices; 

• Disciplinary actions brought by the Special Counsel alleging violation of the 

Hatch Act; 

• Certain proposed actions brought by agencies against administrative law 

judges; 

• Requests for review of regulations issued by the Office of Personnel 

Management, or of implementation of OPM regulations by an agency; and 
• Informal hearings in cases involving proposed performance-based removals 

from the Senior Executive Service. 

Judicial Review 

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

and original jurisdiction cases lies in the U.S. Court of Appeals for the Federal 

Circuit. Board decisions in "mixed cases" may be appealed to the appropriate U.S. 

district court. (A Special Panel decision also may be appealed to the appropriate 

U.S. district court.) If review of all issues but 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 in 

federally-funded positions, 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, nonrenewable 7-year terms. 

CHAIRMAN 

From July 2, 1993 

 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 and served in the Alabama House of 

Representatives from 1970 to 1974. Prior to that, he was a partner in the firm of 

Cooper, Mitch & Crawford, Attorneys, in Birmingham, Alabama. He is a graduate of 

Yale University and received his J.D. degree from the University of Alabama School 

of Law. 

Through July 1, 1993 

DANIEL R. LEVINSON served as Board Chairman from August 15, 1986 

through July 1, 1993. Previously, he was General Counsel of the U.S. Consumer 

Product Safety Commission and, prior to that, Deputy General Counsel of the 

Office of Personnel Management. Prior to joining OPM, Mr. Levinson was an 

associate and partner in the Washington, DC law firm of McGuiness & Williams. 
JESSICA L. PARKS was designated 

Vice Chairman of the Board by President 

Clinton on July 30, 1993. Previously, she 

served as Member of the Board from May 18, 

1990, following her nomination by President 

Bush and confirmation by the Senate. Her 

term appointment expires March 1, 1995. At 

the time of her appointment, Ms. Parks was 

Associate Regional Counsel for Litigation and 

Program Enforcement for the U.S. 

Department of Housing and Urban 

Development in Atlanta, Georgia. From 1982 

to 1985, she served as an administrative 

judge in the Board's Atlanta Regional Office. 

Previously, she was Agency Counsel for the 

Craven County Department of Social Services 

in New Bern, North Carolina. She has also 

been in private practice in Jacksonville, North 

Carolina, and was an associate in the firm of 

Bowers and Sledge in New Bern. She is a 

graduate of Tulane University and received 

her J.D. degree from the University of 

Tennessee College of Law. 

VICE CHAIRMAN MEMBER

ANTONIO C. AMADOR became Vice 

Chairman of the Board on November 

1, 1990, following his nomination by 

President Bush and confirmation by 

the Senate. Currently, he serves as 

Member of the Board. His term 

appointment expires March 1, 1997. 

At the time of his appointment to the 

Board, Mr. Amador was Deputy 

Director, Program Review Branch, 

Employment Development 

Department of the State of California. 

Previously, he served as Director of 

the California Youth Authority, as 

Chairman of the Youthful Offender 

Parole Board in California, and as a 

police officer in the Los Angeles Police 

Department. He received his law 

degree from the McGeorge School of 

Law, University of the Pacific. 
BOARD ORGANIZATION OFFICES OF THE BOARD 

The Chairman, Vice Chairman, and Member adjudicate the cases 

brought to the Board. Each heads his/her individual office. The Chairman, by 

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

INDEPENDENT OFFICES 

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

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

Opinions and Orders. The office also certifies official records to the courts and 

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

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

Act, and Government in the Sunshine Act programs. 

The Office of 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 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. It represents the Board in litigation and prepares proposed 

decisions and orders for the Board in original jurisdiction cases, compliance referral 

cases, and other assigned cases. The office manages legislative policy and 

congressional relations functions and conducts the Board's ethics program. 

The Office of the Inspector General plans and directs audits, 

investigations, and internal control evaluations in compliance with the requirements 

of the Office of Management and Budget and the U.S. General Accounting Office. 

The Inspector General evaluates the programs and operations of the Board in order 

to promote economy and efficiency, to prevent and detect fraud and abuse, and to 

advise the Chairman of any deficiencies detected. The office maintains a 24-hour 

hotline and conducts investigations of allegations involving Board employees. 

OFFICE OF THE EXECUTIVE DIRECTOR 

The Executive Director manages the operations and programs of the 

Board's headquarters and regional offices under authority delegated by the 

Chairman. This delegation includes the authority to make final decisions in the 

areas of personnel management, fiscal management, document security, 

procurement and contracts, and general administrative support services. 

The Office of Regional Operations manages the appellate functions of the 

11 MSPB regional offices, which receive and process the initial appeals filed with 

the Board, and reviews the quality of initial decisions issued by the Board's 

administrative judges. The administrative judges have the primary function of 

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

Attorneys in the Office of Regional Operations provide legal and administrative 

counsel to the administrative judges and regional office directors. Attorneys in the 

Office of Regional Operations also adjudicate and issue initial decisions on assigned 

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

review from initial decisions issued by the administrative judges. The office 

analyzes the petitions, conducts legal research, and submits proposed opinions to 

the Board for final adjudication. It also processes interlocutory appeals of rulings 

made by administrative judges, makes recommendations on reopening appeals on 

the Board's own motion, and provides research and policy memoranda to the Board 

on legal issues. 

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

Administrative Procedure Act and other cases assigned by the Board. 

The Office of Policy and Evaluation carries out the Board's statutory 

responsibility to conduct special studies of the civil service and other merit 

systems, including annual oversight reviews of the Office of Personnel 

Management. Reports of these studies are directed to the President and the 

Congress. 

The Office of Management Analysis develops and coordinates internal 

management programs and projects, including administrative and program 

management reviews of Board offices. The office manages the Board's public 

affairs program and produces the agency's annual report to the President and the 

Congress, the triennial study of cases decided, and public information publications. 

The office also performs case data analysis and internal studies. 

The Office of Administration manages the Board's administrative 

operations. It is made up of three divisions: The Financial and Administrative 

Management Division administers the budget, accounting, procurement, 

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

Board. The Human Resources Management Division manages personnel 

programs and assists managers, employees, and applicants for employment. It 

administers staffing, classification, employee relations, performance management, 

payroll, personnel security, and training functions. The Information Resources 

Management Division develops, implements, and maintains the Board's 

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

efficiently and carry out its administrative and research responsibilities. 
ORGANIZATION CHART 
REGIONAL OFFICIALS 

Thomas J. Lanphear K. J. Payne William Carroll 

Director, Office of Regional Director Regional Director 

Regional Operations Atlanta Office Boston Office 

Martin W. Baumgaertner Paula A. Latshaw Gail E. Skaggs 

Regional Director Regional Director Regional Director 

Chicago Office Dallas Office Denver Office 

Sean P. Walsh Lonnie Crawford Earl A. Witten 

Regional Director Regional Director Regional Director 

New York Office Philadelphia Office St. Louis Office 

Denis Marachi Carl Berkenwald P. J. Winzer 

Regional Director Regional Director Regional Director 

San Francisco Office Seattle Office Washington, DC 

Office 
REGIONAL OFFICE JURISDICTIONS 

Atlanta Regional Office -- Alabama, Florida, Georgia, Mississippi, North Carolina and 

South Carolina 

Boston Regional Office -- Connecticut, Maine, Massachusetts, New Hampshire, Rhode 

Island, and Vermont 

Chicago Regional Office -- Illinois (all locations north of Springfield), Indiana, Michigan, 

Minnesota, Ohio, and Wisconsin 

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

Denver Regional Office -- Arizona, Colorado, Kansas, Montana, Nebraska, Nevada, New 

Mexico, North Dakota, South Dakota Utah, and Wyoming 

New York Regional Office -- New York, Puerto Rico, Virgin Islands, and the following 

counties in New Jersey: Bergen, Essex, Hudson, Hunterdon, Morris, Passaic, Somerset, 

Sussex, Union, and Warren 

Philadelphia Regional Office -- Delaware, Pennsylvania, Virginia (except cities and 

counties served by Washington Regional Office - see below), West Virginia and the 

following counties in New Jersey: Atlantic, Burlington, Camden, Cape May, Cumberland, 

Gloucester, Mercer, Middlesex, Monmouth, Ocean, and Salem 

St. Louis Regional Office -- Illinois (Springfield and all locations south), Iowa, Kentucky, 

Missouri, and Tennessee 

San Francisco Regional Office -- California 

Seattle Regional Office -- Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific 

overseas areas 

Washington Regional Office -- Washington, DC, Maryland, all overseas areas not 

otherwise covered, and the following cities and counties in Virginia: Alexandria, Arlington, 

Fairfax City, Fairfax County, Falls Church, Loudoun, and Prince William 
KINDS OF CASES AND HIGHLIGHTS OF CASES DECIDED IN FY 

1993 

KINDS OF CASES 

Initial appellate jurisdiction cases are adjudicated by administrative 

judges in the Board's regional offices. Appeals and related cases also are 

assigned regularly to the Office of Regional Operations and the Office of the 

Chief Administrative Law Judge at Board headquarters. Attorneys in those 

offices act as administrative judges and issue initial decisions in these cases. 

The kinds of 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. 

• Petition for Enforcement - A request by a party to an appeal that the Board 

enforce its final decision. 

• 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. 

• Remand - A case returned by the Board to an administrative judge, after an 

initial decision on an appeal has been issued, for additional processing and 

issuance of a new initial decision. 

Attorney fee cases, petitions for enforcement, requests for compensatory 

damages, and remands, as a group, are termed “addendum cases” by the Board. 

Approximately 20 percent of initial appeals decided result in the filing of a 

petition for review at Board headquarters. Initial decisions in addendum cases and 

orders issued on stay requests are also subject to review by the Board. The kinds 

of appellate cases in which the Board issues final decisions or orders are: 

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

decision of an administrative judge. A petition for review may be filed with 

respect to an initial decision on an appeal or in an addendum case. 

• Interlocutory Appeal of Stay Order - A request by a party, certified to the Board 

by an administrative judge, that the Board review the administrative judge's 

order ruling on a stay request. 

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

own motion, to reconsider either an initial decision of an administrative judge or 

a final Board decision. 

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

Board reconsider a final decision. 

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

the Director of OPM has sought judicial review of a final Board decision, for 

issuance of a new decision. Also, a case returned by a court where the Board 

has requested remand. 

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

an appellant has sought EEOC review of a Board decision, in which the EEOC 

does not concur with the Board decision on the discrimination issue. 

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

for enforcement of a final Board decision, upon the administrative judge's 

finding that a party is not in compliance. 

The Board also has authority to review an arbitrator's award when the 

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

raises a discrimination issue in connection with the action. Petitions to review an 

arbitrator's award are filed at Board headquarters, and decisions are issued by the 

Board. Attorney fee requests and petitions for enforcement related to Board 

decisions in arbitration cases are referred to a headquarters or regional office for 

issuance of an initial decision, which is then subject to a petition for review by the 

Board. 

The Board issues final decisions in initial cases that arise under its original 

jurisdiction—Special Counsel complaints, Special Counsel stay requests, proposed 

actions against administrative law judges, and requests to review OPM regulations. 

With respect to attorney fee requests and petitions for enforcement related to 

Board decisions in Special Counsel and administrative law judge cases, an initial 

decision is issued by the Chief Administrative Law Judge, which is then subject to 

a petition for review by the Board. Other kinds of cases that may arise from Board 

decisions in original jurisdiction cases include OPM requests for reconsideration, 

court remands, and compliance referrals. 

In one kind of original jurisdiction case, the law provides that there is no 

decision by the Board (or any of the Board's judges). This is the SES performancebased removal case, in which an informal hearing is held by the Chief Administrative Law Judge, but there is no action by the Board. 
SUMMARY OF MSPB DECISIONS AND ORDERS ISSUED IN FY 1993 

Initial Decisions: 

Appeals 6,861 

Addendum Cases 849 1 

Stay Requests 101 2 

TOTAL 7,811 

Board Decisions: 

Appellate Jurisdiction: 

PFRs - Appeals 1,317 

PFRs - Addendum Cases 174 

Interlocutory Appeals - Stays 0 

Reopenings 4 

Court Remands 16 

Compliance Referrals 53 

EEOC Non-concurrence 1 

Arbitration 11 

Subtotal 1,576 

Original Jurisdiction 37 

(see separate report) 

TOTAL 1,613 

1 Attorney fee, compliance, compensatory damages, and remand cases. 

2 Includes 81 stay requests in whistleblower cases and 20 in nonwhistleblower cases. 

NOTE: Board decisions on interlocutory appeals are not included in the above figures. In FY 1993, 

the Board decided 9 interlocutory appeals not involving stays; 4 of these were in USPS 

reorganization cases. 

HIGHLIGHTS OF CASES DECIDED IN FY 1993 

Appellate Jurisdiction -Initial Decisions and Orders 

• Number of Decisions Issued - Administrative judges issued a total of 7,811 

decisions in FY 1993. Of these, 6,861 were initial decisions on appeals, and 

849 were initial decisions in addendum cases. There were 101 orders ruling 

on stay requests-81 in whistleblower cases and 20 in non-whistleblower 

cases. (Stay requests are authorized in whistleblower cases only. Appellants, 

however, sometimes file stay requests in cases in which no whistleblower 

issues are involved.) 
• Disposition - Of the 6,861 initial appeals decided, 3,017 (44 percent) were 

dismissed. (Of the dismissals, 87 percent were for such reasons as lack of 

jurisdiction, agency cancellation, and appellant withdrawal of the appeal. The 

remainder of the dismissals were for timeliness.) Of the 3,844 (56 percent) 

appeals that were not dismissed, 1,973 (51 percent) were settled, and 1,871 

(49 percent) were adjudicated on the merits. Considering the number of 

appeals settled (1,973) and those in which the agency action was reversed 

or mitigated (468), appellants received relief in 63.5 percent of the appeals 

not dismissed. 

RELIEF FOR APPELLANTS 

INITIAL DECISIONS IN APPEALS NOT DISMISSED - FY 1993 

Number Relief for 

Not Dismissed Appellant * 

Settled 1,973 

Reversed 388 

Mitigated 80 

3,844 2,441 

 (63.5 %) 

* "Relief for Appellant" means the case was settled, or the initial decision reversed or mitigated the 

agency action (or corrective action was ordered 

in an IRA). 

• Settlement Rate - The rate of settlement of cases not dismissed was 51 

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

performance cases, 65 percent; and for denials of within-grade increases, 65 

percent. 

• Processing Time - The average processing time for initial appeals was 79 

days, the same as in FY 1992. Of the initial appeals decided, 96 percent 

were decided within 120 days. 

• Types of Actions Appealed - Of the initial appeals decided, 54 percent were 

appeals of agency adverse actions, 5 percent were RIF appeals, and 4 

percent were appeals of performance-based actions. Retirement cases (both 

CSRS and FERS) accounted for 17 percent of the total, and the remainder 

were based on other types of agency actions. 
• Whistleblower Appeals - There were 532 whistleblower appeals and stay 

requests decided. Of this number, 221 were individual right of action (IRA) 

appeals in which the appellant was required to exhaust the procedures of the 

Office of Special Counsel, 230 were direct appeals to the Board that included 

an allegation of reprisal for whistleblowing, and 81 were requests to stay an 

action allegedly based on whistleblowing. 

• Relief for Appellants in Whistleblower Appeals - Of the 451 whistleblower 

appeals decided (221 IRA appeals and 230 appeals of otherwise appealable 

actions), 253 (56 percent) were dismissed. In the other 198 (44 percent) 

whistleblower appeals, appellants received relief—either through settlement 

or a decision reversing or mitigating the agency action (or ordering 

corrective action in an IRA)—in 135 (68 percent). 

INITIAL DECISIONS IN WHISTLEBLOWER APPEALS NOT DISMISSED - FY 

1993 

Whistleblower Number Relief for 

Case Type Not Dismissed Appellant* 

OAAs 114 72 (63 %) 

IRAs 84 63 (75 %) 

Total 198 135 (68 %) 

* "Relief for Appellant" means the case was settled, or the initial decision reversed or mitigated the 

agency action (or corrective action was ordered in an IRA). 

• Mixed Cases - Allegations of discrimination were raised in 2,029 of the initial 

appeals decided; however, the allegation was withdrawn in 1,196 of those appeals. 

The remaining 833 mixed case appeals resulted in a finding of no discrimination in 

817 (98 percent) and a finding of discrimination in 16 (2 percent). 

Appellate and Original Jurisdiction -Final Board Decisions and Orders 

• Number of Decisions Issued - The 3-member Board issued a total of 1,613 

decisions in FY 1993. Of these, 1,317 were decisions on petitions for review of 

initial decisions on appeals, 174 were decisions on petitions for review of initial 

decisions in addendum cases, 85 were decisions in other appellate jurisdiction 

cases, and 37 were decisions in original jurisdiction cases. 

•
Disposition - Of the petitions for review of initial decisions on appeals, 9 percent 

were dismissed, 70 percent were denied for failure to meet the criteria for review, 

9 percent were denied but simultaneously reopened by the Board, and 12 percent 

were granted. Thus, 21 percent of the petitions for review of initial decisions on 

appeals were either granted, or denied but simultaneously reopened. Of the 

decisions in these cases, 57 percent affirmed the initial decision, 18 percent 

reversed it, and 19 percent either remanded or forwarded the case to the 

administrative judge. In the remaining 6 percent, the case was subject to another 

disposition. 

• Processing Time - The average processing time for petitions for review of initial 

decisions on appeals was 131 days, compared to 165 days in FY 1992. The Board 

processed 78 percent of these cases in 110 days or less, averaging 77 days. 

• Other Appellate Cases - The Board issued 3 decisions in cases that it reopened 

on its own motion (excluding decisions on petitions for review where the Board 

denied the petition but simultaneously reopened the case), 1 on an OPM request for 

reconsideration, and 16 on court remands . The Board also issued 1 decision 

in an EEOC non-concurrence case, 53 in compliance referrals, and 11 on petitions 

to review an arbitrator's award. 

• Original Jurisdiction Cases - Of the 37 original jurisdiction case decisions, 16 

were Hatch Act cases brought by the Special Counsel, 14 were Special Counsel stay 

requests, 5 were proposed actions against administrative law judges, and 2 were 

requests to review an OPM regulation. 

Judicial Review 

• Of the 651 final Board decisions reviewed by the U.S. Court of Appeals for the 

Federal Circuit in FY 1993, 95 percent were left unchanged (case dismissed or 

Board decision affirmed). The court affirmed the Board decision in 90 percent of the 

cases it adjudicated. 
ORIGINAL JURISDICTION DECISIONS ISSUED IN FY 1993 

Case Type Number of Decisions Disposition 

OSC Corrective Actions 0 

OSC Disciplinary Actions - Non-Hatch Act 0 

OSC Disciplinary Actions - Hatch Act: 

Federal/DC 6 Removal ordered - 2 

Suspension ordered - 1 

Settled - 3 

State/Local 7 Removal ordered - 5 

Settled - 1 

Remanded to CALF – 1 

Withholding of Funds 1 Ordered funds withheld 

Stay of Board Order Pending 

Judicial Review 1 Denied 

Stay of Proceedings Pending Board 

Decision on Interlocutory Appeal 1 Granted 

OSC Stay Requests: 

Initial Requests 6 Granted - 5 

Withdrawn - 1 

Requests for Extension of Stay 6 Granted 

OSC Request for Enforcement 1 Dismissed (Moot) 

Agency Motion for Termination of Stay * 1 Denied 

Actions Against AJs 5 Settled - 4 

Remanded to CALJ - 1 

Requests for Regulation Review 2 Dismissed (Jurisdiction) - 1 

Denied - 1 

TOTAL 37 

* A second agency motion for termination of a stay was decided as a part of Board decision on 

OSC request for extension of the stay. 
ADJUDICATION: APPELLATE JURISDICTION 

PROCEDURES 

Appeals to the Board must be filed in writing with the Board regional 

office having geographic jurisdiction within 20 days of the effective date of the 

agency action. Where the notice of action does not set an effective date, the 

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

Different time limits apply to appeals of actions allegedly based on 

whistleblowing, where the appellant has first filed a complaint with the Special 

Counsel. An appellant must file with the Special Counsel first if the complaint is 

based on an action that is not otherwise appealable to the Board and may file 

with the Board only after exhausting the procedures of the Office of Special 

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

of action" or "IRA" appeals. 

An IRA appeal may be filed with the Board within 65 days after the date 

of a written notice from the Special Counsel stating that the office will not seek 

corrective action. A direct appeal to the Board is also authorized if 120 days 

have passed since the filing of the complaint with the Special Counsel, and the 

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

corrective action on his 

or her behalf.

Where an appeal 

includes a whistleblower 

allegation and is based 

on an action that is 

otherwise appealable to 

the Board, the appellant 

may file directly with the 

Board or may first file a 

complaint with the 

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

limits for filing are the same as for all other direct appeals to the Board (20 or 25 

days, depending on the kind of action). If the appellant chooses to file with the 

Special Counsel first, the time limits for filing with the Board are the same as for an 

IRA appeal. In either case, such an appeal is termed an "otherwise appealable 

action" or "OAA" appeal. 

Ben L. Erdreich is sworn in as 

MSPB Chairman by U.S. District 

Court Judge U.W. Clemon in 

Birmingham, Alabama, July 2, 

1993. Photo used with 

permission of The Birmingham 

News.

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

to stay a personnel action allegedly based on whistleblowing. A stay request may 

be filed when an appellant is eligible to file a whistleblower appeal, and it may be 

filed before, at the same time as, or after the appeal is filed. Stay requests are filed 

in writing with the Board regional office having geographic jurisdiction. By law, stay 

requests must be decided within 10 days of receipt of the request. 
With respect to mixed cases, if an appellant has first filed a discrimination 

complaint with the agency, the appellant may file an appeal with the Board within 

20 days after receipt of the agency's decision. If the agency has not resolved the 

discrimination complaint within 120 days of its filing, the appellant may file an 

appeal with the Board at any time after the 120-day time limit expires. If an 

appellant elects to file a mixed case appeal with the Board without first filing a discrimination complaint with the agency, the appeal must be filed within 20 days 

after the effective date of the agency action. 

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

acknowledging receipt of the appeal and raising any questions of timeliness or 

jurisdiction. The appeal is assigned to an administrative judge for adjudication. The 

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

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

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

certain circumstances, the appellant may have a right to a hearing on the issues of 

jurisdiction and timeliness. 

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

right to a hearing on the merits. During prehearing conferences, issues are defined 

and narrowed, stipulations to undisputed facts are obtained, and the possibility of 

settlement is discussed. If a hearing is held, each party has the opportunity to call 

and cross-examine witnesses, present evidence, and make arguments to the 

administrative judge. Hearings, which generally are open to the public, are fully 

recorded, with copies of the record available to the parties. Once the record is 

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

Appeals involving classified national security information and appeals from 

MSPB employees are assigned to the Chief Administrative Law Judge at 

headquarters for adjudication. The Chief Administrative Law Judge hears these 

cases and issues an initial decision. 

An initial decision on an appeal becomes the final decision of the Board 

unless a party files a petition for review with the Board within 35 days of the date 

of the initial decision or the Board reopens the case on its own motion. The Board 

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

administrative judge was based on an erroneous interpretation of statute or 

regulation, or that new and material evidence is available that, despite due 

diligence, was not available when the record was closed. 

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

the outcome of any petition for review, unless the administrative judge determines 

that interim relief is not appropriate. If the administrative judge's decision 

requires the return of the appellant to the workplace, and the agency determines 

that such a return would be unduly disruptive, the agency must nevertheless 

restore the appellant to pay and benefits status. When an agency files a petition for 

review of an initial decision that provided interim relief to the appellant, the agency 

must furnish evidence that it has provided appropriate interim relief. If such 

evidence is not provided, the Board will dismiss the petition for review. 
Petitions for review are filed with the Office of the Clerk at Board headquarters by 

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

Management or the Office of Special Counsel as an intervenor. The Board also has 

the discretion to reopen and consider an initial decision on its own motion. The 

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

FISCAL YEAR 1993 ACTIVITIES REGIONAL OFFICES 

Regional office receipts of new cases in Fiscal Year 1993 were down 7 

percent from the previous fiscal year. This decrease, however, followed a 17 

percent increase from Fiscal Year 1987, the year in which significant 

expansions of Board jurisdiction began, to Fiscal Year 1992. 

The number of initial decisions issued in Fiscal Year 1993 was 7,811, a 

decrease of 7 percent from the previous fiscal year. Decisions on initial appeals 

were down 6 percent, and those in addendum cases were down 13 percent. 

Decisions on stay requests, however, increased 4 percent. 

Thomas J. Lanphear, Director, Office of 

Regional Operations (center), meets with 

new administrative judges. 

The Board continued to review 

the quality of initial decisions issued 

by its administrative judges. Reviews 

were conducted of initial decisions 

issued by administrative judges in the 

Atlanta, Boston, Denver, New York, 

and Washington regional offices. In 

addition, on-site visits were made to the Boston, Denver, and New York regional 

offices in connection with the reviews. 

The Office of Regional Operations developed a guide to assist the Board 

in gathering information about case processing in the regional offices. In 

connection with this guide, questionnaires were distributed, and administrative 

judges and chief administrative judges/regional directors were interviewed, in 

the Chicago, Denver, and New York regional offices. The information obtained 

will be used by the Board to improve and facilitate case adjudication. 

The Board's Chief Administrative Judges' Conference was held in 

Washington, DC, in June 1993. The purposes of the conference were to promote 

consistency in applying Board procedures and to provide an opportunity for the 

chief administrative judges to discuss regional office issues and approaches for 

addressing those issues. The chief administrative judges participated in training 

sessions and discussions and heard presentations from headquarters staff and 

outside speakers. The topics considered included labor relations; recruiting, 

interviewing, and accommodating individuals with disabilities; current legislation; 

developments in the law; ethics; and financial and personnel matters. The chief 

administrative judges also heard a presentation by Judge Randall Rader of the 

U.S. Court of Appeals for the Federal Circuit and participated in a tour of the U.S. 

Supreme Court. 

A week-long training session for the Board's most recently hired 
administrative judges was held in September 1993 in Washington, DC. The 

purposes of the session were to familiarize the administrative judges with 

headquarters staff and their functions and to provide substantive training by more 

experienced administrative judges in practical aspects of the adjudicatory process, 

such as doing legal research, conducting prehearing conferences and hearings, 

and writing high quality initial decisions. In addition, a number of the Board's 

administrative judges completed courses at the National Judicial College and 

Harvard Law School during the fiscal year. 

Vice Chairman Parks and The Honorable 

Randall R. Rader, Judge, U.S. Court of 

Appeals for the Federal Circuit. 

FISCAL YEAR 1993 ACTIVITIES -

HEADQUARTERS 

The number of decisions issued by 

the Board on petitions for review of initial 

decisions, both on appeals and in 

addendum cases, was 1,491, a decrease of 17 percent from the previous fiscal 

year. Receipts of new petitions for review were down 2 percent. 

In decisions issued during Fiscal Year 1993, the Board continued to develop 

its case law under the Whistleblower Protection Act, including definitions of "gross 

mismanagement" and "gross waste of funds." The Board also issued important 

precedential decisions dealing with questions of awarding interim relief to 

retirement annuitants who prevail before the Board, the timeliness of filings with 

the Board via private express companies, and participation in an agency's leave 

transfer program. 

In the last quarter of the fiscal year, the Board developed plans for a pilot 

project to institute alternative dispute resolution at the Board level of the appellate 

process. A task force appointed by the Chairman gathered information on similar 

programs in the appellate courts and developed procedures to implement the pilot 

project. The project was expected to be launched early in Fiscal Year 1994. 

POSTAL SERVICE REORGANIZATION APPEALS 

 In effecting a major restructuring in late 1992, the U.S. Postal Service 

abolished thousands of management positions, moved several thousand employees 

to lower graded positions, and offered buyouts as an inducement to employees to 

retire. The Postal Service maintained that the restructuring was not a reduction in 

force and that personnel actions taken in the course of the restructuring, therefore, 

were not appealable to the Board. By the end of the fiscal year, however, the 

Board had received 277 appeals of actions resulting from the Postal Service 

reorganization. 
In general, appellants alleged that they had been affected by an appealable RIF 

action or that they had suffered an appealable adverse action, such as a reduction 

in grade or pay. Preference eligible employees in the Postal Service may appeal 

both RIF actions and adverse actions to the Board. Supervisors and managers 

without veterans' preference, however, may appeal adverse actions only. 

Most of the initial decisions issued by the Board's administrative judges prior 

to July 1993 dismissed the appeals, generally for lack of jurisdiction, although 

some were withdrawn by appellants. In a few decisions issued in the spring and 

early summer, however, administrative judges found that the Board did have 

jurisdiction and reversed the agency actions. These decisions covered both RIF 

actions, in which the judge determined that the appellant had been demoted in a 

RIF, and adverse actions, in which the judge determined that the appellant had 

suffered a reduction in grade. 

In order to have the 3-member Board rule on the issue of jurisdiction as soon 

as possible, the Postal Service sought an interlocutory appeal of the administrative 

judge's ruling finding jurisdiction in Brown v. USPS, a RIF appeal pending in the St. 

Louis Regional Office. The judge certified the interlocutory appeal to the Board, 

and, on July 21, 1993, the Board issued its decision, finding that the Postal Service 

restructuring as it affected the appellant constituted a demotion by RIF. The Board 

then returned the case to the judge to complete adjudication. On July 30, 1993, 

the Board issued decisions on three other pending interlocutory appeals (DiPietro v. 

USPS, Hanson v. USPS, and Sakagawa v. USPS), making the same findings and 

then returning the cases to the administrative judges to complete adjudication. 

As administrative judges began applying the Board's Brown decision, in both 

RIF and adverse action appeals, they reversed the Postal Service in additional 

appeals. The Postal Service then filed petitions for Board review of a number of 

the initial decisions issued by administrative judges. In one of these, Roberts v. 

USPS, the Director of OPM notified the Board that he was exercising his statutory 

right to intervene in the case. In late September, however, the Postal Service 

withdrew its petition for review in Roberts. At the end of the fiscal year, it was 

unclear what further steps the Postal Service and/or the OPM Director might take. 

There were a total of 172 Postal Service reorganization appeals decided in 

Fiscal Year 1993. Of these, 102 (59 percent) were dismissed. Of the 70 cases not 

dismissed, 13 (19 percent) were settled, and the remaining 57 (81 percent) were 

adjudicated on the merits. The agency action was reversed in all of the adjudicated 

cases. 

Petitions for review were filed in 69 cases, double the usual rate for these 

filings. In addition to the four Board decisions on interlocutory appeals noted 

above, the Board issued three decisions on petitions for review. One was dismissed 

because the petition was withdrawn, and one was denied, allowing the initial 

decision that dismissed for lack of jurisdiction to become final. In the third case 

(Barnett v. USPS, September 29, 1993), the Board denied the petition for failure to 

meet the criteria for review, but reopened the case on its own motion and 

remanded it to the administrative judge to make a determination of jurisdiction, 

applying the Board's decision in Brown. 

See Appendix A for statistical information on cases decided by the Board 
during Fiscal Year 1993. 

See Appendix B for summaries of significant Board decisions on appeals 

issued during Fiscal Year 1993. 
Appellate Case Processing 

 Approximately 600 Board

decisions are filed after 

Initial Appeal decision 

becomes final or after three 

member Board review and 

decision. 

U.S. Court of Appeals 

for the Federal Circuit

U.S. District Court 

 Approximately 1600 

Petitions for Review of 

Initial Appeals and 

Addendum Cases filed 

yearly with the Clerk of 

the Board. Reviewed by 

the Office of Appeals 

Counsel.

MSPB Three Member Board 

Decision 

Mixed Cases (Discrimination) can go to 

Equal Employment Opportunity 

Commission and then to the U.S. 

district court, or directly to the district 

court.

 Other Appellate Cases: 

Enforcement; Equal 

Employment 

Opportunity 

Commission NonConcurrence; and 

Arbitration Appeals.

Pilot 

Settlement

Program 

For selected PFRs, 

Board attorneys

discuss settlement 

with parties.

If not settled, hearing, 

decision or decision on the 

record. Hearings generally 

opened to the public. 

Initial Decision After record is closed, the 

Administrative Judge issues an intitial 

decision.

Settlement If settled, Administrative Judge 

dismisses the case with issuance of 

decision, although parties may file a 

Petition for Review (PFR) with the 

Board.

Issues are defined, facts obtained, and settlement 

discussed.

Adverse decisions on 

Jurisdiction/Timeliness Petition for 

Review (PFR) to three member 

Board.

Jurisdiction/ Timeliness Once timeliness/jurisdiction is established, 

appellant entitled to hearing on the merits. 

 Approximately 8.000 Initial 

Appeals and Addendums yearly.

 Appeal Types: Adverse Action 

(Removal, Suspension, 

Demotion); Probationer; 

Reduction-in-Force; 

Performance; Within-Grade 

Denial; Suitability; Retirement; 

Whistleblower, Attorney Fee, 

Compliance, Remand, 

and Compensatory Damages.

Initial Appeals MSPB Eleven 

Regional Offices

Employee/Representative files initial appeal 

with 1 of 11 MSPB regional offices. 

Administrative Judges also rule on stay 

requests under the Whistleblower Protection 

Act.
ADJUDICATION: ORIGINAL JURISDICTION 

PROCEDURES 

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

at Board headquarters. Employees against whom Hatch Act or other Special 

Counsel disciplinary action complaints are filed have 35 days to respond and are 

entitled to a hearing. An administrative law judge against whom an agency 

proposes an action also has 35 days to respond and is entitled to a hearing. These 

cases are assigned to the Board's Chief Administrative Law Judge, who issues a 

recommended decision to the Board for final action. 

Special Counsel stay requests and requests for regulation review are decided 

by the Board. An initial stay request may be granted by a single Board member, 

while a request for extension of a stay must be acted on by the full Board. 

In SES performance-based removal cases, the Chief Administrative Law 

Judge holds an informal hearing, but the Board does not issue a decision. The 

record of the hearing is forwarded to the employing agency, OPM, and the Special 

Counsel for whatever action may be appropriate. 

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

requests for attorney fees, petitions for enforcement, compliance referrals, court 

remands, and OPM requests for reconsideration arising out of Board decisions in 

original jurisdiction cases. 

Pictured left to right, Bettye Steve, Legal Technician, 

and Carol Duncan, Legislative Relations Assistant, 

OGC. 

FISCAL YEAR 1993 ACTIVITIES 

The Board issued a total of 37 

decisions in original jurisdiction cases in 

Fiscal Year 1993, more than twice the 

number issued in the previous fiscal year 

(16). The increase was attributable 

primarily to significant increases in the 

number of Hatch Act cases and Special Counsel stay requests decided. 

Hatch Act Cases 

There were 16 Board decisions in Hatch Act cases, of which 7 were final 

decisions in cases involving State or local government employees in federallyfunded positions, 6 were final decisions in cases involving Federal or District of 

Columbia Government employees, and 3 were decisions in related matters. This 

compares to six such decisions the previous fiscal year. 

In five of the Hatch Act cases involving State or local government 

employees, the Board found that the employees had violated the Hatch Act and 

that the circumstances of the cases warranted their removal. Of the other two 

Hatch Act cases involving State or local government employees, one was settled, 

and one was remanded to the Chief Administrative Law Judge for further 
proceedings. 

In all six of the cases involving Federal or D.C. Government employees, the 

Board found that the employees had violated the Hatch Act, but it found removal 

warranted in only two cases. In three of the other cases, the Board approved 

settlement agreements imposing suspensions. In the sixth case, the Board imposed 

a 30-day suspension. 

The Board issued three other decisions in Hatch Act matters during the 

fiscal year. In one, the Board ordered Federal funds withheld from a State agency 

because it failed to remove an employee who had violated the Hatch Act after the 

Board found that removal was warranted. A second decision denied a Federal 

employee's request for a stay of the Board's decision ordering him suspended for 

30 days for violation of the Hatch Act, pending judicial review of the Board's 

decision. 

In the third case, the Board granted a stay of proceedings before the Chief 

Administrative Law Judge pending its decision on an interlocutory appeal on the 

question of jurisdiction. The essential question was whether the respondents, all 

employees of the State of Tennessee, are covered by the Hatch Act. The 

respondents maintained that, owing to unique State law, they were not employed 

by a State agency within the executive branch and, thus, were beyond the reach of 

the Hatch Act. The Board found there was good cause for a stay of the proceedings 

because the question before it on interlocutory appeal involved the Board's 

jurisdiction over the case and should be decided before the merits of the case. (See 

Special Counsel v. Bissell, et al., summarized in Appendix C.) 

Pictured left to right, OGC Attorneys, Melissa 

Pollack and Eric Flores. 

Special Counsel Stay Requests 

During the fiscal year, the Board 

issued 14 decisions involving Special 

Counsel stay requests and related matters. 

Of these, six were on initial 45-day stays 

requested by the Special Counsel, six were 

on Special Counsel requests for extensions 

of stays, one was on a compliance matter, 

and one was on an agency motion for termination of a stay. This compares to four 

decisions on Special Counsel stay requests and related matters the previous fiscal 

year. All but one of the initial Special Counsel stay requests were filed on behalf of 

whistleblowers. 

The Special Counsel withdrew one of the initial requests for a stay, and the 

other five were granted by a member of the Board. All six of the Special Counsel 

requests for extensions of stays were granted by the Board. The one compliance 

matter, a Special Counsel request for enforcement of a stay, was dismissed when 

the agency complied. The Board issued one decision denying an agency motion for 

termination of a stay; it denied a second such motion as a part of a decision on a 

Special Counsel request for extension of a stay. 
Actions Against Administrative Law Judges 

The Board issued five decisions in administrative law judge disciplinary 

action cases in Fiscal Year 1993. Four of the cases were resolved by settlement 

agreements approved by the Board. In the fifth case, the Board held that an 

administrative law judge's adjudicatory errors can establish good cause for 

disciplinary action and that such an action does not interfere with the administrative law judge's decision-making independence. The case was remanded to the 

Chief Administrative Law Judge for further proceedings. 

Regulation Reviews 

The Board issued decisions on two requests for review of agency 

implementation of an Office of Personnel Management regulation during the fiscal 

year. In one case, the Board denied the request to review the agency's implementation of a provision of the Federal Personnel Manual because it was 

substantially identical to a statute and the Board does not have authority to review 

an agency's implementation of a statutory provision. The other request was 

dismissed because it did not establish a basis for Board jurisdiction. 

See Appendix C for summaries of significant Board decisions issued in 

original jurisdiction cases during Fiscal Year 1993. 

LITIGATION 

The Board defends its final decisions on appeals, except those involving 

the merits of the underlying personnel action or a request for attorney fees, 

before the U.S. Court of Appeals for the Federal Circuit, its primary reviewing 

court. The Board also defends many of the final decisions issued under its 

original jurisdiction authority before the Federal Circuit. (Appeals from Board 

decisions in Hatch Act cases involving employees of State and local 

governments, are heard by Federal district courts.) In Fiscal Year 1993, the 

Board defended 185 cases before the Federal Circuit, a 22.5 percent increase 

over the number of cases the Board defended in the previous fiscal year. 

In Fiscal Year 1993, the Federal Circuit issued a precedential decision 

affirming the Board's decision in a Special Counsel case where the Board had 

disciplined a Federal agency management official for taking retaliatory action 

against an employee because of protected whistleblowing disclosures. Hathaway 

v. Merit Systems Protection Board, 981 F.2d 1237 (1992). 

Other active litigation includes cases in which OPM petitions for review in the 

Federal Circuit, subpoena enforcement cases, and discrimination cases filed in the 

various Federal district courts when the Board is named as a defendant. This fiscal 

year, Board attorneys defended two decisions protecting the due process rights of 

employees. These decisions, which the Director of OPM appealed to the Federal 

Circuit, are Brook v. Hillen and Merit Systems Protection Board, No. 92-3601, 

appeal from Hillen v. Department of the Army, 54 M.S.P.R. 58 (1992), and Brook 

v. Nazelrod and Merit Systems Protection Board, No. 93-3017, appeal from 

Nazelrod v. Department of Justice, 54 M.S.P.R. 461 (1992). In Hillen, the Board 

found that the Department of the Army improperly removed the appellant under 

anti-discrimination regulations and rejected OPM's argument that the agency also 
brought the charges under its own discrimination policy. In Nazelrod, the Board 

held that a charge of theft requires proof of criminal intent. 

Pictured left to right, OGC Attorney, Michael 

Martin, and Martha Schneider Assistant General 

Counsel. 

The Board also litigated a 

precedential subpoena enforcement 

action in the United States Court of 

Appeals for the Fifth Circuit. The Fifth 

Circuit affirmed a Federal district court 

decision which held that a Texas statute 

creating a physician-patient privilege did 

not bar enforcement of the Board's 

subpoenas. Merit Systems Protection 

Board v. Dill, No. 92-5750 (5th Cir. Aug. 20, 1993), and Gilbreath v. Merit Systems 

Protection Board, No. 92-5702 (5th Cir. Aug. 20, 1993). The effect of the appeals 

court's decision is to vacate a State court order that enjoined enforcement of the 

subpoenas. 

During Fiscal Year 1993, the Board monitored approximately 700 cases 

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

These cases are filed in the United States Court of Appeals for the Federal Circuit. 

Although the Department of Justice defends the employing agency against whom 

the appeal is filed, the Board monitors this litigation closely, evaluating the case to 

determine if Board intervention is appropriate, responding to inquiries, assisting in 

drafting briefs, and analyzing the court's decisions in these cases. 

See Appendix D for summaries of the significant litigation activities of the 

Board during Fiscal Year 1993. 

MERIT SYSTEMS STUDIES AND REVIEWS OF OPM SIGNIFICANT ACTIONS 

THE STATUTORY STUDIES FUNCTION 

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

the responsibilities of reviewing the significant actions of OPM and conducting 

studies of the civil service and other merit systems in the Executive Branch. The 

Board's legislative mandate with respect to its OPM oversight and studies 

functions focuses on ensuring compliance with the merit system principles and 

keeping the merit systems free from prohibited personnel practices. 

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

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

studies, usually governmentwide in scope, are conducted through a variety of 

research methods, including mail and telephone surveys, on-site systems 

reviews, written interrogatories, formal discussions with subject-matter experts, 

computer-based data analysis, and reviews of secondary source materials. 
The Board's reports on the results of its studies are addressed to the President 

and the Congress, as required by law, and also are made available to a large 

secondary audience of Federal agency officials, employee and public interest 

groups, labor unions, academicians, and other individuals and organizations 

with an interest in public personnel administration. 

STUDIES COMPLETED/STUDIES PUBLISHED IN FISCAL YEAR 1993 

During Fiscal Year 1993, the Board completed seven studies of important 

civil service issues. Reports of two of these studies were published by the end of 

the fiscal year, and a third was being printed; the others were to be published 

early in Fiscal Year 1994. These studies are: 

Federal Personnel Offices: Time for Change? - A study of the effectiveness of 

agency personnel offices from the perspective of agency managers and personnel 

office staff. (See Appendix E.) 

The Changing Face of the Federal Workplace: A Symposium on Diversity - A 

report of the proceedings of a symposium sponsored by the Board in the Spring of 

1993. (See Appendix E.) 

Whistleblowing in the Federal Government: An Update - A study of Federal 

employees' observations and reports of perceived illegal or wasteful activities in the 

Federal Government. This survey-based study updates a 1983 Board report on 

whistleblowing in the Federal Government. (See Appendix E.) 

Evolving Workforce Demographics: Federal Agency Action and Reaction - A 

study of the responses of Federal agencies to demographic changes predicted in the 

late 1980's by reports such as "Workforce 2000" and "Civil Service 2000." Predicted 

changes include shortages of entry-level applicants, the rising age of the 

workforce, the growing minority representation in the workforce, and increasing 

skill requirements for Federal jobs. 

Entering Professional Postions in the Federal Government - A study of six 

key mechanisms through which Federal agencies select professional and 

administrative employees at GS grades 5 through 15. The study examines 

strengths and weaknesses of each mechanism, their effects on representation of 

women and minorities, and the quality of individuals selected through each. 

The Significant Actions of the Office of Personnel Management in Temporary 

Employment - A study of the impact of current OPM temporary employment policy 

on effectiveness of managers, fairness for employees, and agency compliance with 

merit principles, focusing on past criticisms and potential impact of proposed 

changes. 

Merit Principles Survey - A 1992 update of the Board's previous triennial 

surveys of Federal employees about their perspectives on and experiences with 

the merit principles and their impact. 

In addition, the Board published four reports in the early months of Fiscal 

Year 1993 that had been completed in the previous fiscal year. These were: 
A Question of Equity: Women and the Glass Ceiling in the Federal Government - A 

study examining career advancement in the 

Government and whether there are barriers that 

account for the underrepresentation of 

women in senior-level jobs. 

Civil Service Evaluation: The Role of 

the U.S. Office of Personnel Management - A study of 

the role of OPM's personnel management evaluation 

(PME) program in providing oversight of personnel 

management in Federal agencies. 

Federal Blue Collar Employees: A Workforce 

In Transition - A study of the people and systems 

that make up the Federal crafts and trades 

workforce, analyzing important issues from the 

perspectives of line managers, employees, personnel offices, and unions. 

Federal Personnel Research Programs and Demonstration Projects: Catalysts 

for Change - A study of OPM's accomplishments in promoting and overseeing 

research programs and demonstration projects under the authority granted by the 

CSRA. 

IMPACT OF BOARD STUDIES 

The Board's studies have become influential in the field of public 

administration and are especially respected within the human resources 

management community. The reports are widely used and referenced by the 

Congress and Federal agencies, as well as by academicians and public interest 

groups, who influence public personnel policies and operations. Data from the 

Board's surveys are frequently requested by agencies to help with their 

management improvement efforts. Data are also requested by the General 

Accounting Office, the Congressional Budget Office, and the Office of Personnel 

Management. 

Fiscal Year 1993 highlights include the following: 

• The National Performance Review (NPR) headed by the Vice President made 

extensive references to various Board studies and reports in its report devoted 

to improving Federal personnel management. Many of the recommendations of 

the NPR report are consistent with those put forth by the Board. 

• The Board's report on women and the glass ceiling in the Federal Government 

received extensive media coverage, resulting in the distribution of over 8,000 

copies by the Board. In addition, several thousand more copies were distributed 

by Federal agencies that reproduced the report internally or ordered copies 

directly from the Government Printing Office. Since the report was published, 

Board staff have accepted over 50 speaking engagements on this issue at 

Federal agency programs, professional conferences, training programs, and 

other gatherings. The Board also provided data and other assistance to agencies 

interested in further exploration of the issue within their own agencies. 

Alvin E. Ray, Manager, Human 
Resources Management 

Division, Federal Aviation 

Administration Great Lakes 

Region, addresses the MSPB 

Symposium on Diversity. 

 A symposium sponsored by the Board on workforce diversity was hailed as a 

pioneering effort to bring multiple viewpoints together to discuss the current 

status of diversity initiatives and to bring the underlying issues into focus. 

One agency used the results of the symposium to develop a program for 

holding its senior executives accountable for achieving a representative 

workforce and managing the resulting diversity of cultures in the workplace. 

 The Board's report on "balancing work responsibilities and family needs" 

(issued in Fiscal Year 1992) continues to generate interest among the 

public administration community. The original supply of reports was 

exhausted, and a second printing was required as requests for copies 

continued to be received from Federal agencies and the private sector. 

A paper based on the report will become a chapter in a forthcoming book to 

be published by the American Psychological Association.

• Advance information from 

the Board's 

governmentwide Merit 

Principles Survey 

(scheduled for publication 

early in Fiscal Year 1994) 

was used by committees 

of the Congress in their 

deliberations regarding 

reform of the Hatch Act, 

and data supplied by the 

Board was entered into 

the record. 

Attendees at the MSPB Symposium on Diversity.

• Two of the Board's recommendations in its report, Federal Research 

Programs and Demonstration Projects: Catalysts for Change, were adopted 

by OPM—the process used for updating the research topics listed in OPM's 

research agenda and the method used by OPM to disseminate research 

information by tailoring its reports to the intended users of the information. 

• A report on the need for change in Federal personnel offices—released in 

August 1993—struck a very responsive chord among the Federal personnel 

community and generated a great deal of constructive dialogue. It is also 

one of the reports referenced by the Vice President's NPR report in support 

of several of its positions. 

• The Board experienced a high level of interest in its study of glass ceiling 

issues as they affect minorities in the Federal Government, although the 

report is not scheduled for release until mid-1994. Requests for Board 

representatives to make presentations concerning the research plan and 

early findings started coming in June 1993. 
See Appendix E for summaries of the reports completed and published 

during Fiscal Year 1993. 

OUTREACH ACTIVITIES 

The Board members and headquarters and regional staff conducted or 

participated in approximately 260 outreach activities to major constituencies in 

Fiscal Year 1993. These activities included addressing groups, participating in 

seminars and 

conferences, and conducting training programs designed to further an 

understanding of the Board's policies and procedures, developments in Board 

case law, and important issues in Federal personnel law. The Board's outreach 

program also encompasses its participation in interagency organizations, 

publications and published articles, and the International Visitors Program. 

PERSONAL APPEARANCES, MEETINGS, AND INSTRUCTION 

Almost half of the outreach appearances during the fiscal year were made 

by the regional directors, administrative judges, and headquarters regional 

operations staff. Audiences for these appearances numbered from 10 to 600, 

with a combined total audience in the thousands. In addition to comprehensive 

training sessions on Board practices and procedures, the Board's regional 

personnel addressed such topics as significant Board and Federal Circuit 

decisions, alternative dispute resolution, effective advocacy at MSPB hearings, 

interim relief, sexual harassment, whistleblower protection, performance-based 

actions, firm choice in handicap discrimination cases, and RIF appeals. 

Regional personnel presented a number of mock hearings, including mock 

hearings for the Public Administration Forum and the Postal Service. The Boston 

Regional Office initiated a monthly training session, consisting of a review of the 

Board's regulations and procedures, for representatives of parties appearing 

before judges of the office. The half-day session received favorable responses 

from the participants. In addition, both the Boston and Washington regional 

offices prepared and conducted major symposiums on Board law. 

Within a few weeks of his appointment, Chairman Ben Erdreich began a 

series of nationwide meetings with representatives of both appellant and agency 

groups to discuss their critical perspectives on the functioning of the Board. The 

purpose of the meetings is to allow the Chairman to hear directly from Board 

practitioners their views and recommendations for improvement. By the end of 

the fiscal year, meetings had been held in San Franscisco and Seattle. 

Vice Chairman Parks and the Director of the Office of Regional Operations 

participated in Federal Bar Association (FBA) symposiums in Atlanta and Detroit. 

The Atlanta symposium was sponsored by the Atlanta Chapter of the FBA and the 

Atlanta Bar Association. The Detroit symposium was sponsored by two sections of 

the Detroit Chapter of the FBA. Vice Chairman Parks, a member of the National 

Council of the FBA, arranged these programs. 
The Board members and headquarters attorneys participated in outreach activities 

to inform agencies, employee unions, private practitioners, and other interested 

parties about the Board, its authorities, jurisdiction, practices, and procedures. 

Topics addressed included recent developments in Board and Federal Circuit case 

law, cases decided under the Whistleblower Protection Act, mixed cases, sexual 

harassment, settlement strategies, and the Board's glass ceiling report. 

The Board participated in the annual Federal Circuit Judicial Conference in 

June 1993 and sponsored a breakout session on Board law. In August 1993, the 

Board again participated in the Federal Dispute Resolution Conference with EEOC, 

OPM, the Federal Labor Relations Authority (FLRA), the Federal Mediation and 

Conciliation Service (FMCS), and the Office of Special Counsel. Chairman Ben 

Erdreich attended this conference and, at the opening session, announced plans for 

the new pilot program to settle appeals at the Board review level. 

The studies staff participated in conferences, seminars, and symposia to 

discuss human resources management issues and to report on the results and 

implications of the Board's studies and reviews of OPM significant actions. More 

than half of the appearances during Fiscal Year 1993 focused on the Board's report 

on the glass ceiling that hinders the advancement of women in the Federal 

Government. Other topics of outreach appearances included balancing work and 

family responsibilities, workforce quality, issues affecting blue-collar workers, 

managing change, and the role of Federal personnel offices. 

In May of 1993, MSPB again participated in the celebration of Public Service 

Recognition Week, sharing a booth on the Mall with FLRA. Board staff answered 

questions from visitors to the booth and distributed information about the agency. 

Over 300 requests for Board information publications and reports of its merit 

systems studies and OPM oversight reviews were received. 

REPRESENTATION IN ORGANIZATIONS 

The Merit Systems Protection Board is an active participant in the Small 

Agency Council (SAC), a voluntary association of Federal agencies that employ 

fewer than 6,000 people. The Board is also represented in the Public Employees 

Roundtable, the President's Council on Management Improvement, and the 

Interagency Committee on Voluntarism. The Board's Inspector General represents 

the agency on the President's Executive Council on Integrity and Efficiency. In 

1993, the Board's Deputy Director, Office of Policy and Evaluation, served as 

President of the International Personnel Management Association (IPMA) Federal 

Section. 

The Board's Director of Administration represents MSPB as a member of the 

Board of Directors of the National Capital Area Cooperative Administrative Support 

Units (CASU). This Board coordinates the efforts of agencies to combine their 

administrative resources to take advantage of economies of scale. In addition, 

several regional directors serve as Board members of CASUs in their cities. 

Regional directors, administrative judges, and other personnel in several 

regional offices serve on the Federal Executive Board (FEB) and FEB committees in 

their cities. The Regional Director of the Denver Regional Office chaired the Denver 

FEB in Fiscal Year 1993 and received an award for distinguished FEB member. 

During her tenure, the FEB Board of Directors met in private session with Vice 
President Albert Gore. 

PUBLICATIONS AND ARTICLES 

In an effort to promote greater awareness by Federal employees of their 

rights under the Whistleblower Protection Act, the Board announced in September 

1993 that it was reprinting its publication, Questions & Answers About 

Whistleblower Appeals, and encouraged agencies to order copies from the 

Government Printing Office. In addition to publishing an announcement in the 

Federal Register, Chairman Ben Erdreich sent letters to the heads of all Executive 

Branch agencies with employees covered by the Act and encouraged them to use 

the publication as one means of advising their employees of their rights under the 

Act and the Board's procedures for whistleblower appeals. 

The Federal Merit Systems Reporter (Labor Relations Press) of January 1993 

published "Remarks on Decisions of the MSPB Under the Whistleblower Protection 

Act" by Vice Chairman Parks. These remarks were originally made by the Vice 

Chairman at the MSPB Practitioners' Forum sponsored by the Public Administration 

Forum in September 1992 and were updated for publication. 

Several members of the Board's studies staff published articles during the 

fiscal year in such publications as The Public Manager, International Journal of 

Public Administration, PA Times (monthly publication of the American Society for 

Public Administration), and Periscope. About half of the articles published dealt 

with the Board's glass ceiling report. Other articles included "Reinventing Public 

Personnel Management" and "Toward the Year 2000: Issues and Strategies for 

Federal Labor-Management Relations." 

Six members of the studies staff presented papers at the 1993 annual 

conference of the American Society for Public Administration on the following 

topics: Federal recruitment and selection; Federal personnel offices; balancing 

work responsibilities and family needs; the glass ceiling; Federal first-line 

supervisors; and workforce quality and Federal procurement. 

INTERNATIONAL VISITORS PROGRAM 

The Board's international visitors program is conducted at Board 

headquarters by the Board members and senior staff. The program is responsive to 

requests from foreign visitors who wish to learn about merit system principles and 

the Board's practices and procedures. During Fiscal Year 1993, the Board members 

and headquarters staff made presentations to approximately 30 visitors from a 

number of countries, including Taiwan, Turkey, China, Tanzania, Australia, the 

Netherlands, and Japan. The Board also arranged for visitors to meet with Board 

regional office staff. 

The visitors included governors, lieutenant governors, heads of agencies, 

inspectors general, staff directors, and attorneys. Many of these individuals visited 

the Board during a time when their countries were in the process of developing or 

revising an appeals system. The visitors expressed particular interest in the type of 

issues that the Board addresses in its decisions and the adjudication of appeals by 

the Board's regional offices. 
ADMINISTRATION, FINANCE, AND HUMAN RESOURCES 

ADMINISTRATION 

Shortly after assuming his duties as the agency's chief executive officer in 

July 1993, Chairman Ben Erdreich called on the directors of all Board offices to 

review the agency's organization and to suggest possible organizational realignments that would allow the Board to continue its efficient operations with fewer 

employees. This review was underway at the end of the fiscal year and was 

expected to result in some organizational realignment in Fiscal Year 1994. The 

only organizational change made in Fiscal Year 1993 was to place the Office of 

the Clerk of the Board directly under the Chairman, rather than the Executive 

Director. 

Like all Federal agencies, the Board devoted considerable time during the 

fiscal year to planning to meet the reductions in staff and administrative costs 

mandated by the Administration through Executive Orders issued by President 

Clinton early in 1993. By the end of the fiscal year, new Executive Orders issued 

in response to recommendations in the report of Vice President Gore's National 

Performance Review were also being incorporated into the planning process. 

As one means of promoting greater efficiency and reducing costs, Chairman 

Erdreich early in his term began to call attention to the burden of reporting 

requirements imposed on Federal agencies. In testimony before the Subcommittee 

on Civil Service, House Post Office and Civil Service Committee, the Chairman 

pointed out that the Board is required to submit approximately 70 reports each 

year. Gathering information for, completing, and filing these reports requires staff 

time equivalent to just over four full-time employees at a cost of more than 

$250,000 each year. By the end of the fiscal year, the Subcommittee on Oversight 

of Government Management, Senate Committee on Governmental Affairs, was 

reviewing reporting requirements and surveying agencies with a view towards 

reducing the number of required reports. The National Performance Review also 

recommended reducing agency reporting requirements. 

During the fiscal year, the Board enhanced its Case Management System 

(CMS) by adding new information to assist offices in managing workload, 

expanding document generation capabilities for use by headquarters offices, and 

preparing additional CMS documentation such as the "Data Dictionary" and "A 

Guide for Occasional Users." The Board upgraded its minicomputer with a faster 

central processing unit and software to provide faster help to users. It also 

upgraded both operating system and word processing software. Information 

resources management staff visited about half of the regional offices to provide 

"hands-on" assistance to regional staff. 

A conference at Board headquarters was conducted for Administrative 

Officers of all the regional offices. The conference provided the participants with 

updated information on a number of administrative topics, including information 

resources and human resources management. 
George Coles, Supply Technician, Financial and 

Administrative Management Division. 

FINANCIAL STATEMENT 

The income and expenses of the Merit Systems Protection Board for 

Fiscal Year 1993 (October 1, 1992, through September 30, 1993) are shown 

below. All figures are in thousands of dollars. 

INCOME 

Appropriations 24,450 

Reimbursements - Civil Service Retirement & Disability Trust Fund 1,950 

Reimbursements – Other (interagency agreement and reimbursable detail) 40 

Total income 26,440 

EXPENSES 

Direct obligations: 

Personnel compensation 

 Full-time permanent 15,070 

 Other than full-time permanent 1,093 

 Other personnel compensation 352 

Subtotal, personnel compensation 16,515 

Personnel benefits 2,578 

Benefits - former employees 21 

Travel of persons 422 

Transportation of things 40 

Rental payment to GSA 2,246 

Rental payments to others 58 

Communications, utilities, 

and miscellaneous charges 442 

Printing and reproduction 83 

Other services 1,138 

Supplies and materials 301 

Equipment 532 

Subtotal, direct obligations 24,376 

Reimbursable obligations 1,990

Total obligations 26,366 

BALANCE 74 
Charlie Roche, Contracting Office, Financial 

and Adminstrative Mangement Division. 

HUMAN RESOURCES 

The full-time equivalent (FTE) employment for the Board in Fiscal Year 1993 was 

310. 

The representation of women and 

minorities in the Board's workforce continues 

to be impressive. Women and minorities are 

not clustered in lower grades, and the Board's 

representation of these groups in professional occupations is high. The following 

table shows the percentages of female and minority attorneys, as well as the 

percentage representation of these groups in the Board's workforce as a whole. 

MSPB Employment by Male/Female and Minority/Majority 

Attorneys 

No. in Percent of 

Attorney Attorney 

Workforce Workforce

Male 87 58.0 

Female 63 42.0 

Total 150 100.0 

Minority * 30 20.0 

Majority 120 80.0 

Total 150 100.0 

MSPB (Entire Agency) 

No. in Percent of 

Workforce Workforce

Male 126 40.0 

Female 190 60.0 

Total 316 100.0 

Minority * 104 33.0 

Majority 212 67.0 

Total 316 100.0 * Excluding White/Female 

Data as of September 30, 1993 

During the fiscal year, the Board's human resources management staff began 

development of a career pathing project that will identify and document career 

paths and will include definitive descriptions of work performed by clerical and 

administrative employees. In addition, the human resources management staff 

made plans to survey Board employees to determine whether there was interest in 

a self-directed career development program. The Board should be able to 

implement such a program with the reduced resources that are likely to be 

available for career development in the future. 
Michael S. Bogdanow accepts the Theodore 

Roosevelt Award, the Board's highest honor 

In November 1992, the Theodore 

Roosevelt Award, the Board's highest 

honor, was presented to Michael 

Bogdanow, Assistant Director, Office of 

Appeals Counsel. The award was 

established in Fiscal Year 1988 to honor 

Board employees who demonstrate 

distinguished performance or leadership in 

support of the Board's mission to protect 

Federal merit systems through its 

adjudicatory and studies functions. At the 

awards ceremony, 21 other Board 

employees were honored with the Chairman's Awards for Excellence. 

Pictured from left to right, Robert Hernandez, 

Executive Assistant to the Member, and 

Loralee Falvey, Computer 

Programmer/Analyst, Information Resources 

Management Division. 
APPENDIX A - CASE PROCESSING STATISTICS 

TABLE OF CONTENTS 

1. Types of Initial Appeals Decided in FY 1993 

2. Disposition of Initial Appeals Decided in FY 1993 

3. Dispositions of Initial Appeals Adjudicated on the Merits in FY 1993 

4. Outcomes of FY 1993 Appeals Not Dismissed 

5. Reasons for Dismissals of Appeals in FY 1993 

6. Disposition of Initial Appeals Decided by Type of Case in FY 1993 

7. Disposition of Initial Appeals Adjudicated by Type of Case in FY 1993 

8. Initial Appeals Decided in FY 1993 by Selected Agencies 

9. Case Processing Timeliness in FY 1993 

10. Time to Process Initial Appeals by Case Type in FY 1993 

11. Time to Process Initial Appeals by Disposition Type in FY 1993 

12. Ten-Year Trend in Settlement Rates, FY 1984 - FY 1993 

13. Settlement Rates by Type of Initial Appeal Decided in FY 1993 

14. Dispositions of Whistleblower Initial Appeals and Stay Requests Decided, FY 

1990 - FY 1993 

15. Initial Appeals With Allegations of Discrimination Decided in FY 1993 

16. Types of Discrimination Alleged in Initial Appeals Decided in FY 1993 

17. Disposition of Requests for Attorney Fees Decided in FY 1993 

18. Disposition of Compliance Requests Decided in FY 1993 

19. Disposition of Remands Decided in FY 1993 

20. Disposition of Remands Adjudicated in FY 1993 

21. Total Board Cases Decided in FY 1993 

22. Petitions for Review of Initial Appeals Decided in FY 1993 

23. Disposition of Petitions for Review of Initial Appeals Granted and PFRs Denied 

and Reopened in FY 1993 

24. Dispositions of Whistleblower Petitions for Review of Initial Appeals and Stay 

Requests Decided in FY 1993 

25. Petitions for Review of Initial Appeals with Allegations of Discrimination Decided 

in FY 1993 

26. Dispositions of Petitions for Review of Requests for Attorney Fees, 

Compliance Requests, and Remands Decided in FY 1993 

NOTE: In tables of "Dispositions" of initial appeals, whistleblower cases, attorney fee 

requests, compliance requests, and remand cases, the number of cases decided 

is first divided into cases "Dismissed" and "Not Dismissed." Cases "Settled" and 

"Adjudicated" are then expressed as percentages of cases "Not Dismissed." The 

term "Adjudicated" refers to cases that are adjudicated on the merits. 
1. TYPES OF INITIAL APPEALS DECIDED IN FY 1993 

Total Number of Initial Appeals: 6,861 

Percentages do not total 100% because of rounding. 

2. DISPOSITION OF INITIAL APPEALS DECIDED IN FY 1993 

Total number of initial appeals: 6,861 

Percentages do not total 100% because of rounding. 
3. DISPOSITIONS OF INITIAL APPEALS ADJUDICATED ON THE MERITS IN 

FY 1993 

Based on 1,871 adjudicated initial appeals. 

4. OUTCOMES OF FY 1993 APPEALS NOT DISMISSED 
5. REASONS FOR DISMISSALS OF APPEALS IN FY 1993 

Percentages do not total 100% because of rounding. 

6. DISPOSITION OF INITIAL APPEALS DECIDED BY TYPE OF CASE IN FY 

1993 

Type of Case 

Decided 

# %

Dismissed 

# % 

Not Dismissed 

# % 

Settled 

# % 

Adjudicated 

# %

Adverse Action by Agency 3675 54% 1342 37% 2333 63% 1492 64% 841 36%

Termination of Probationers 320 5% 296 92% 24 8% 19 79% 5 21%

Reduction in Force 339 5% 117 35% 222 65% 64 29% 158 71%

Performance 251 4% 50 20% 201 80% 130 65% 71 35%

Denial of Within-Grade 61 1% 21 34% 40 66% 26 65% 14 35%

Suitability 73 1% 25 34% 48 66% 23 48% 25 52%

CSRS Retirement: Legal 628 9% 212 34% 416 66% 27 6% 389 94%

CSRS Retirement: 260 4% 123 47% 137 53% 32 23% 105 77%

CSRS Retirement: 

Overpayment 304 4% 111 37% 193 63% 56 29% 137 71%

Individual Right of Action 221 3% 137 62% 84 38% 56 67% 28 33%

Other 729 11% 583 80% 146 20% 48 33% 98 67%

Total 6861 101% 3017 44% 3844 56% 1973 51% 1871 49%

NOTE: Percentages may not add to 100 due to 

rounding. 
7. DISPOSITION OF INITIAL APPEALS ADJUDICATED BY TYPE OF CASE IN 

FY 1993 

Type of Case Adjudicated Affirmed 

Reversed

Mitigated Remanded 

# # % # % # % # %

Adverse Action by Agency

841 640 76% 133 16% 68 8% 0 0%

Termination of 

Probationers 5 2 40% 3 60% 0 0% 0 0%

Reduction in Force 158 99 63% 59 37% 0 0% 0 0%

Performance 71 56 79% 15 21% 0 0% 0 0%

Denial of Within-Grade 14 12 86% 2 14% 0 0% 0 0%

Suitability 25 22 88% 3 12% 0 0% 0 0%

CSRS Retirement: Legal 

389 328 84% 57 15% 1 0% 3 1%

CSRS Retirement:

 Disability 105 73 70% 31 30% 0 0% 1 1%

CSRS Retirement: 

Overpayment 137 67 49% 53 39% 9 7% 8 6%

Individual Right of Action 28 21 75% 7 25% 0 0% 0 0%

Other 98 66 67% 25 26% 2 2% 5 5%

Total 1871 1386 74% 388 21% 80 4% 17 1%

 NOTE: Percentages may not add to 100 due to rounding. 
8. INITIAL APPEALS DECIDED IN FY 1993 BY SELECTED AGENCIES 

Decided 

# 

Dismissed

# % 

Not 

Dismissed

# %

Settled 

# %

Adjudicated

# %

Affirmed 

# % 

Reversed 

% 

Mitigated 

or Other 

# % 

OPM 1400 523 37% 877 63% 141 16% 736 84% 544 74% 165 22% 27 4% 

Postal Service 1326 660 50% 666 50% 403 60% 263 40% 151 57% 95 36% 17 6% 

Navy 697 256 37% 441 63% 287 65% 154 35% 129 84% 18 12% 7 4% 

Army 615 286 46% 329 54% 198 60% 131 40% 100 76% 23 18% 8 6% 

VA 555 297 54% 258 46% 180 70% 78 30% 63 81% 11 14% 4 5% 

Air Force 385 171 44% 214 56% 116 54% 98 46% 69 70% 19 19% 10 10% 

Defense 349 138 40% 211 60% 132 63% 79 37% 64 81% 5 6% 10 13% 

Treasury 277 137 50% 140 50% 83 59% 57 41% 51 90% 5 9% 1 2% 

Justice 258 108 42% 150 58% 84 56% 66 44% 45 68% 17 26% 4 6% 

Transportation 164 56 34% 108 66% 57 53% 51 47% 44 86% 7 14% 0 0% 

Agriculture 160 70 44% 90 56% 71 79% 19 21% 14 74% 3 16% 2 10% 

Interior 125 60 48% 65 52% 43 66% 22 34% 19 86% 2 9% 1 4% 

HHS 95 36 38% 59 62% 43 73% 16 27% 14 88% 2 12% 0 0% 

GSA 62 33 53% 29 47% 17 59% 12 41% 8 67% 3 25% 1 8% 

HUD 43 17 40% 26 60% 14 54% 12 46% 11 92% 0 0% 1 8% 

Commerce 42 17 40% 25 60% 14 56% 11 44% 8 73% 2 18% 1 9% 

Labor 41 25 61% 16 39% 12 75% 4 25% 4 100% 0 0% 0 0% 

TVA 28 11 39% 17 61% 4 24% 13 76% 13 100% 0 0% 0 0% 

Smithsonian 25 6 24% 19 76% 12 63% 7 37% 4 57% 3 43% 0 0% 

Energy 20 6 30% 14 70% 7 50% 7 50% 6 86% 1 14% 0 0% 

FDIC 17 7 41% 10 59% 5 50% 5 50% 2 40% 3 60% 0 0% 

SBA 17 8 47% 9 53% 5 56% 4 44% 3 75% 1 25% 0 0% 

EPA 14 7 50% 7 50% 2 29% 5 71% 2 40% 1 20% 2 40% 

EEOC 12 7 58% 5 42% 4 80% 1 20% 1 100% 0 0% 0 0% 

NASA 12 8 67% 4 33% 2 50% 2 50% 2 100% 0 0% 0 0% 

FEMA 10 4 40% 6 60% 3 50% 3 50% 1 33% 2 67% 0 0% 

Other 112 63 56% 49 44% 34 69% 15 31% 14 93% 0 0% 1 7% 

Total 6861 3017 3844 1973 1871 1386 388 97

NOTE. Percentages may not add to 100 due to rounding. 
9. CASE PROCESSING TIMELINESS IN FY 1993 

Initial Appeals (excluding requests for stays, attorney fee 

requests, compliance requests, and remands) 

10. TIME TO PROCESS INITIAL APPEALS BY CASE TYPE IN FY 1993 

0 days 20 days 40 days 60 days 80 days 100 days120 days Average 

number of days. 
11. TIME TO PROCESS INITIAL APPEALS BY DISPOSITION TYPE IN FY 

1993 

12. TEN-YEAR TREND IN SETTLEMENT RATES, FY 1984 - 1993 

Percentage of initial appeals not dismissed for lack of jurisdiction 

or timeliness 
13. SETTLEMENT RATES BY TYPE OF INITIAL APPEAL DECIDED IN FY 1993 

Percentage of initial appeals not dismissed for lack of 

jurisdiction or timeliness 
14. DISPOSITIONS OF WHISTLEBLOWER INITIAL APPEALS AND STAY 

REQUESTS DECIDED, FY 1990-1993 

Fiscal Year 

Individual Right of Action (IRA)

Decided Dismissed Not Dismissed Settled Adjudicated

# # % # % # % # %

FY 1990 89 71 80% 18 20% 11 61% 7 39%

FY 1991 196 125 64% 71 36% 49 69% 22 31%

FY 1992 221 144 65% 77 35% 41 53% 36 47%

FY 1993 221 137 62% 84 38% 56 67% 28 33%

Otherwise Appealable Action 

(OAA) FY 1990 163 84 52% 79 48% 43 54% 36 46%

FY 1991 275 141 51% 134 49% 78 58% 56 42%

FY 1992 282 131 46% 151 54% 81 54% 70 46%

FY 1993 230 116 50% 114 50% 61 54% 53 46%

Request for Stay on IRA or OAA

FY 1990 74 16 22% 58 78% 1 2% 57 98%

FY 1991 73 12 51% 61 49% 0 0% 61 100%

FY 1992 76 16 21% 60 79% 3 5% 57 95%

FY 1993 81 24 30% 57 70% 2 4% 55 96%

NOTE. The Individual Right of Action (IRA) appeal was created by the Whistleblower 

Protection Act of 1989. In this kind of case, the individual is subject to a personnel action 

and claims that the action was taken because of his or her whistleblowing, but the action is 

not one that is directly appealable to the Board. In an IRA, the individual can appeal to the 

Board only if, after having first filed a complaint with the Office of the Special Counsel, 

either the Special Counsel does not seek corrective action on the individual's behalf or 120 

days pass with no action by the Office of Special Counsel. In the Otherwise Appealable 

Action (OAA) appeal, the individual is subject to a personnel action that is directly 

appealable to the Board, and the individual claims that the action was taken because of his 

or her whistleblowing. A Request for a Stay can be filed with the Board in connection with 

an IRA or an OAA. A stay orders the agency to suspend the personnel action being 

appealed. 
15. INITIAL APPEALS WITH ALLEGATIONS OF DISCRIMINATION DECIDED 

IN FY 1993 

Number Percent 

Total Initial Appeals Decided 6,861 100% 

Cases without Allegations of Discrimination -4.832 -70% 

Cases with Allegations of Discrimination 2,029 30% 

Cases in which Allegations were Withdrawn -1.196 -17% 

Total Mixed Cases Decided 833 12% 

Cases in which Discrimination was Found 16 2% 

Cases in which Discrimination was not Found 817 98% 

NOTE. Percentages do not add to 100 due to rounding. 

16. TYPES OF DISCRIMINATION ALLEGED IN INITIAL APPEALS DECIDED 

IN FY 1993 

Percentage based on 2,774 allegations. 
17. DISPOSITION OF REQUESTS FOR ATTORNEY FEES DECIDED IN FY 1993 

Decided Dismissed 

Not

Dismissed Settled Adjudicated

Fees 

Granted

Fees Not 

Granted

# # % # % # % # % # % #

281 29 10% 252 90% 141 56% 111 44% 73 66% 38 34%

18. DISPOSITION OF COMPLIANCE REQUESTS DECIDED IN FY 1993 

Decided Dismissed Not Settled Adjudicated Compliance Compliance 

Dismissed Found Not Found 

# # % # % # % # % # % # % 

446 121 27% 325 73% 118 36% 207 64% 171 83% 36 17% 

19. DISPOSITION OF REMANDS DECIDED IN FY 1993 

Decided Dismissed Not Dismissed Settled Adjudicated 

# # % # % # % # %

121 31 26% 90 74% 30 33% 60 67%

NOTE. MSPB refers to attorney fee requests, compliance requests, and requests 

for compensatory damages as addendum cases because they are filed 

subsequent to the initial appeal and are directly related to an initial appeal. 

Cases remanded to an administrative judge are also included in addendum 

cases; decisions on initial appeals, attorney fee requests, compliance requests, 

and requests for compensatory damages may all be remanded. In FY 1993, 

there was only 1 request for compensatory damages, and that case was 

dismissed. 
20. DISPOSITION OF REMANDS ADJUDICATED IN FY 1993 

Mitigated Attorney Fee Attorney Fee

Adjudicated Affirmed Reversed Modified/ Granted/ Not Granted/

Other Compliance Compliance

Found Not Found

# # % # %

# % # % # %

60 31 52% 15 25% 5 8% 6 10% 3 5%

NOTE. MSPB refers to attorney fee requests, compliance requests, and requests 

for compensatory damages as addendum cases because they are filed 

subsequent to the initial appeal and are directly related to an initial appeal. 

Cases remanded to an administrative judge are also included in addendum 

cases; decisions on initial appeals, attorney fee requests, compliance requests, 

and requests for compensatory damages may all be remanded. In FY 1993, 

there was only I request for compensatory damages, and that case was 

dismissed. 

21. TOTAL BOARD CASES DECIDED IN FY 1993 

Type of Case/Activity Number 

APPELLATE JURISDICTION CASES

Petitions for Review (PFR's) — Initial Appeals 1,317 

Petitions for Review (PFR's) — Addendum Cases 174 

Reopenings/Court Remands 20 

Reviews of Stay Rulings 0 

Subtotal 1.511 

Compliance Referrals 53 

EEOC Non-Concurrence 1 

Appeals of Arbitration Awards 11 

Subtotal 65 

ORIGINAL JURISDICTION CASES

Actions brought by Special Counsel - Hatch 16 

Actions Against Administrative Law Judges 5 

OSC Stay Requests 14 

Review of Regulations 2 

Subtotal - Original Jurisdiction Cases 37 

TOTAL BOARD CASELOAD

1,613 

NOTE. The Board holds hearings for performance-based removals from the SES although no 

decisions are issued. In FY 1993, no hearings were held. 
22. PETITIONS FOR REVIEW OF INITIAL APPEALS DECIDED IN FY 1993 

Type of Case

Decided 

#

Dismissed 

# % 

Denied* 

# %

Granted 

# % 

Adverse Action by Agency 702 69 10% 538 77% 95 14%

Termination of Probationers 49 6 12% 40 82% 3 6%

Reduction in Force 64 5 8% 56 88% 3 5%

Performance 44 6 14% 34 77% 4 9%

Denial of Within-Grade 10 2 20% 8 80% 0 0%

Suitability 6 0 0% 6 100% 0 0%

CSRS Retirement: Legal 200 19 10% 158 79% 23 12%

CSRS Retirement: Disability 49 4 8% 35 71% 10 20%

CSRS Retirement: 23 1 4% 15 65% 7 30%

Overpayment 

Individual Right of Action 61 3 5% 56 92% 2 3%

Other 109 4 4% 94 86% 11 10%

Total 1317 119 9% 1040 79% 158 12%

*Of 1040 PFR's that were denied, 118 (11%) were reopened. Thus, of 1317 PFR's 

decided, 21% were either granted (158 or 12%) or denied and reopened for review 

(118 or 9%). 
23. DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL APPEALS 

GRANTED AND PFR'S DENIED AND REOPENED IN FY 1993 

 Type Of Case Granted AJ Affirmed AJ 

Reversed

Remanded 

or 

Forwarded

Other

# # % # % # % # %

Adverse Action by Agency 95 57 60% 23 24% 12 13% 3 3%

Termination of Probationers 3 1 33% 0 0% 2 67% 0 0%

Reduction in Force 3 1 33% 1 33% 1 33% 0 0%

Performance 4 1 25% 2 50% 1 25% 0 0%

Denial of Within-Grade 0 0 0% 0 0% 0 0% 0 0%

Suitability 0 0 0% 0 0% 0 0% 0 0%

CSRS Retirement: Legal 23 10 43% 9 39% 3 13% 1 4%

CSRS Retirement: 10 0 0% 4 40% 5 50% 1 10%

CSRS Retirement: 

Overpayment 7 0 0% 1 14% 4 57% 2 29%

Individual Right of Action 2 2 100% 0 0% 0 0% 0 0%

Other 11 2 18% 4 36% 4 36% 1 9%

Subtotal 158 74 47% 44 28% 32 20% 8 5%

Reopenings of PFRs Denied 118 83 70% 7 6% 20 17% 8 7%

Total 276 157 57% 51 18% 52 19% 16 6%

NOTE. Approximately 19% of initial decisions end in the filing of a PFR by the 

appellant or the agency. The term "AJ stands for administrative judge. 

Percentages may not add to 100 due to rounding. 

24. DISPOSITIONS OF WHISTLEBLOWER PETITIONS FOR REVIEW OF 

INITIAL APPEALS AND STAY REQUESTS DECIDED IN FY 1993 

Dismissed/

Appeal Category Decided Denied Granted Affirmed Reversed Remanded Other 

# # % # % # % # % # % # %

Individual Right of 

Action 61 59 97% 2 3% 2 100% 0 0% 0 0% 0 0%

Otherwise Appealable 

Action 

58 49 84% 9 16% 4 44% 3 33% 2 22% 0 0%

Review of Stay Ruling 0 — — — — — — — — — — — —

NOTE. Percentages may not add to 100 due to rounding.Type 
25. PETITIONS FOR REVIEW OF INITIAL APPEALS WITH ALLEGATIONS OF 

DISCRIMINATION DECIDED IN FY 1993 

Number Percent

Total Initial Appeals Decided 

1,317 100%

Cases without Allegations of Discrimination - 887 -67%

Cases with Allegations of Discrimination 

430 33%

Cases in which Allegations were Withdrawn - 169 -13%

Total Mixed Cases Decided 261 20%

Cases in which Discrimination was Found 7 3%

Cases in which Discrimination was not Found 254 97%

26. DISPOSITIONS OF PETITIONS FOR REVIEW OF REQUESTS FOR 

ATTORNEY FEES, COMPLIANCE REQUESTS, AND REMANDS DECIDED IN 

FY 1993 

Type of Case 

Decide

d 

#

Dismissed 

# % 

Denied 

# % 

Granted 

# % 

Request for Attorney 

Fees 43 2 5% 34 79% 7 16%

Compliance Request 63 4 6% 52 83% 7 11%

Remand 68 5 7% 53 78% 10 15%

Total 174 11 6% 139 80% 24 14%

NOTE. MSPB refers to PFR's of attorney fee requests and compliance requests 

as PFR's of addendum cases. PFR's of cases remanded to an administrative 

judge are also included in PFR's of addendum cases. Percentages may not add 

to 100 due to rounding. 
APPENDIX B - SIGNIFICANT BOARD DECISIONS - 

APPELLATE JURISDICTION CASES 

This appendix contains summaries of significant appellate jurisdiction cases 

decided by the Board during Fiscal Year 1993. 

Board decisions are published in West Publishing Company's United States 

Merit Systems Protection Board Reporter. The M.S.P.R. citations below are to that 

publication. 

ADVERSE ACTIONS 

Leave Transfer Program 

Joyner v. Department of the Navy PH-0752-92-0518-I-1 (April 1, 1993) 57 

M.S.P.R. 154 (1993) 

In its first decision involving the leave transfer program, the Board held that 

an agency can properly deny an employee's request for leave without pay (LWOP) 

where there is no foreseeable end in sight to the employee's absence and where 

that absence is a burden to the agency. Under such circumstances, the denial of 

LWOP is reasonable, and the agency is not required to prolong the situation by 

extending the employee's absence on donated leave. Because the agency's policy 

was to allow participation in the leave transfer program only when LWOP had been 

granted, the agency's proper denial of LWOP disqualified the employee for such 

participation. The Board upheld the agency's removal of the appellant for being 

absent without leave. 

Falsification of Employment Application 

Beardsley v. Department of Defense DE-0752-91-0157-B-1 (November 13, 

1992) 55 M.S.P.R. 504 (1992) 

In an adverse action based on falsification of an employment application, the 

Board's rule is that it will not consider an appellant's good work record in mitigation 

of the penalty imposed. The Board established an exception to that rule here: In 

situations where the deciding official considers the appellant's good work record, 

the Board will also. 

ATTORNEY FEES 

Anderson v. Government Printing Office DC-0752-91-0758-A-1 (November 

18, 1992) 55 M.S.P.R. 548 (1992) 

Ruling on a motion for attorney fees, the Board found that an attorney-client 

relationship may be established by an appellant with an attorney who works for a 

law school clinical program. In addition, the Board ruled, by analogy to 

reimbursement of paralegal costs, fees may be payable not only for the services of 

the attorney but also for the law students who work as her agents. 
BACK PAY AND COMPLIANCE 

Andress v. U.S. Postal Service CH-0752-89-0302-X-1 (March 10, 1993) 

56 M.S.P.R. 501 (1993) 

The Board held that the Back Pay Act applies to preference eligible Postal 

Service employees who prevail in appeals before the Board. The Board 

reasoned that the Postal Reorganization Act, which removed the Postal Service 

from the Back Pay Act's coverage, specifically preserved the rights granted to 

preference eligible employees by title 5 of the U.S. Code at the time of the 

reorganization. These rights include the remedies the Back Pay Act confers 

upon appellants who prevail before the Board. The Board found that, as to 

preference eligibles, the Postal Service could not by regulation alter the rules 

developed through judicial construction of the Back Pay Act. The Board noted that 

courts have held that the Back Pay Act does not require an employee to mitigate his 

or her damages by seeking alternative employment until after his or her 

administrative appeal is decided. Therefore, the Board concluded that the appellant, 

who did not seek other employment while he was off the rolls, was entitled to back 

pay notwithstanding Postal Service regulations to the contrary. 

Holtgrewe v. Federal Deposit Insurance Corporation DE-0752-89-0167-C-1 

(May 5, 1993) 57 M.S.P.R. 307 (1993) 

To comply with a decision mitigating an appellant's removal to a demotion, 

the Board found in this case, the agency must restore him to his former work 

location. The appellant is entitled to a mitigation remedy that is as close to the 

status quo ante as the demotion allows, unless the agency shows that "overriding 

circumstances" require his reassignment to a different location. A claim of 

overstaffing and a desire for a clean slate do not constitute such a showing. 

Holmes v. Department of Veterans Affairs PH-0752-89-0485-X-1 (April 19, 

1993) 57 M.S.P.R. 115 (1993) 

In petitioning for enforcement of a settlement agreement, the appellant 

asserted that he lost another job because the agency breached the agreement by 

responding improperly to an employment inquiry. The Board found that the 

appellant's entitlement to an award of back pay for the breach depends on his 

showing that, absent the breach, he would have secured that employment. 

Lunkin v. U.S. Postal Service SF-0752-85-0038-X-1 (March 24, 1993) 56 

M.S.P.R. 642 (1993) 

The Board held that Postal Service preference eligible employees are 

entitled, upon the reversal of an unjustified personnel action, to restoration of all 

annual leave that the employee would have earned during the period the action 

was in effect, even though that amount may exceed the maximum number of 

hours that agency regulations permit an employee to carry over on a yearly basis. 

Relying on its decision in Andress v. U.S. Postal Service, 56 M.S.P.R. 501 (1993), 

the Board found that the employee's remedy arose under the Back Pay Act, which 

authorizes a status quo ante remedy, including restoration of annual leave in 

excess of the maximum leave accumulation authorized by the agency's internal 

regulations. 
DISCRIMINATION 

"Handicapped" Employee — Accommodation 

Harris v. Department of the Army NY-0752-90-0047-I-1 (March 29, 1993) 

57 M.S.P.R. 124 (1993) 

In this decision, the Board explained the requirement that an agency provide 

a "firm choice" to employees handicapped by drug or alcohol abuse. To do so, the 

agency must offer the appellant an unequivocal choice between effective treatment 

of his condition and the initiation of removal proceedings if he chooses not to 

participate in a treatment program, ceases his participation in such a program, is 

discharged before the program's completion, fails to adhere to its terms, or 

engages in alcohol- or drug-related misconduct or has alcohol- or drug-related 

performance deficiencies after completing the program. Failure to provide a "firm 

choice" would constitute handicap discrimination if the appellant shows that he is a 

handicapped person and that his misconduct was caused by his substance abuse 

handicap. (Vice Chairman Parks issued a dissenting opinion.) 

Banks v. Department of the Navy PH-0752-89-0296-I-1 (March 29, 1993) 57 

M.S.P.R. 141 (1993) 

Expanding on Harris, above, the Board held that the focus of a "firm choice" 

analysis should be on the choice offered the appellant at the time the most severe 

discipline short of removal is imposed, not before that point. "Firm choice" cannot 

be used merely as a counseling or threatening device, or it will lose its force and 

not constitute the requisite serious notice that it was intended to be. (Vice 

Chairman Parks issued a dissenting opinion.) 

Yancy v. General Services Administration CH-0752-89-0585-I-1 (April 5, 

1993) 57 M.S.P.R. 192 (1993) 

Further expanding on Harris, the Board held that an appellant is not 

provided a "firm choice," and therefore is not reasonably accommodated for her 

alcoholism, where, despite being told that removal may be initiated for her 

"intolerable" misconduct, the most severe discipline she faced after three such 

warnings was a 10-day suspension. The Board found here that the agency's 

subsequent removal action therefore constituted handicap discrimination. (Vice 

Chairman Parks issued a dissenting opinion.) 

EVIDENCE 

Exclusionary Rule 

Delk v. Department of the Interior DC-0752-92-0526-I-1 (June 3, 1993) 57 

M.S.P.R. 528 (1993) 

The Board found in this case that the exclusionary rule, which excludes 

illegally seized evidence from consideration in criminal proceedings, does not apply 

to Board proceedings. In reaching this conclusion, the Board distinguished 

Supreme Court decisions extending the exclusionary rule beyond purely criminal 

proceedings. The primary purpose of the rule, deterrence of police misconduct, is 

not well served in cases involving Government employees, and the interest in the 

integrity of the public service far outweighs any possible interest protected by the 

rule. 
INTERIM RELIEF 

Authority to Award 

Steele v. Office of Personnel Management SF-0831-92-0373-I-1 (May 14, 

1993) 57 M.S.P.R. 458 (1993) 

The right to an interim relief award extends to retirement annuitants as well 

as other employees, the Board ruled in this case. In reaching this conclusion, the 

Board overruled its decision in Cassity v. OPM. It cautioned, however, that, while it 

possesses the authority to award interim relief in retirement appeals, it should take 

care in doing so to avoid potential problems it may create, such as the annuitant's 

having to pay back an overpayment, if the initial decision finding in the annuitant's 

favor is overturned on petition for review. Interim relief should not be awarded in 

an appeal where, as here, the annuitant seeks only an increase in the amount of 

her survivor annuity. 

Proof 

May v. Department of Veterans Affairs AT-0752-92-0636-I-1 (May 7, 1993) 

57 M.S.P.R. 422 (1993) 

When an agency files a petition for review of an initial decision in which the 

administrative judge has ordered interim relief, the agency's unsworn statement 

that it has provided interim relief does not suffice as evidence of compliance with 

the order. An SF-50 or SF-52 personnel action form, however, or a specific letter to 

the appellant from the agency will suffice, as will a sworn statement detailing the 

manner of compliance, in the absence of a challenge. 

Details 

Bonggat v. Department of the Navy SF-0752-92-0509-I-1 and SF-1221-92-

0777-W-1 (February 16, 1993) 56 M.S.P.R. 402 (1993) 

In affording interim relief where the initial decision orders restoration of the 

appellant's former grade, an agency may detail an appellant to a lower-graded 

position as long as the agency pays the appellant the appropriate salary for his 

former grade. The Board found such a detail to be acceptable, even though the 

appellant's professional skills may not be fully utilized in the job, as long as it is not 

demeaning, unsafe, or discriminatory. Further, it is not improper for the agency to 

require the appellant to return to duty prior to the actual filing of its petition for 

review. 

Demotions 

Slaughter v. Department of Agriculture AT-0752-91-0900-I-1 (February 12, 

1993) 56 M.S.P.R. 349 (1993) 

Where an initial decision orders a one-grade demotion in mitigation of a 

removal, the agency complies with the interim relief order when it demotes the 

appellant one grade, but to the first step of that grade from the higher step level 

he previously occupied. The Board discerned no rule setting a minimum step level 

to which a demotion can occur. 
Suspension 

Stevenson v. Department of Defense SL-0752-91-02744-1 (November 25, 

1992) 55 M.S.P.R. 625 (1992) 

The Board found in this case that, where the relief ordered by the 

administrative judge is a suspension that would not be completed until after the 

date of the initial decision, the agency has complied with the interim relief order 

when it returns the appellant to the rolls after the completion of the suspension, 

rather than as of the date of the initial decision. 

Compliance 

Labatte v. Department of the Air Force SE-0752-91-0445-X-1 (August 23, 

1993) 58 M.S.P.R. 586 (1993) 

The Board held that once it dismisses an agency's petition for review for 

failure to comply with an interim relief order, any issue of the agency's compliance 

with the interim relief order becomes moot. The Board found that in considering 

the appellant's petition for enforcement of the Board's final order, the issue of the 

appellant's pay for the interim relief period was an issue of back pay, and the issue 

of the agency's processing of the appellant's security clearance was an issue of 

compliance with the Board's final decision. The Board stated that any issue 

concerning a delay in restoring the clearance was moot for purposes of determining 

the agency's compliance with the Board's order because the agency was processing 

the clearance; the Board noted, however, that the issue might be relevant to a 

petition for attorney fees. The Board concluded that the agency was in compliance 

with the Board's order reversing the appellant's removal. The Board found that the 

suspension of the appellant's security clearance justified the agency's failure to 

return him to his former job, and that the agency properly deducted the wages and 

tips the appellant earned during the removal period from his back pay. 

JURISDICTION 

Arbitration Decisions 

Confer v. Department of Veterans Affairs CB-7121-92-0031-V-1 (May 12, 

1993) 57 M.S.P.R. 401 (1993) 

An allegation of marital status or political affiliation discrimination does not 

provide a basis for review of an arbitration decision under 5 U.S.C. § 7121, the 

Board ruled in this appeal. Although such discrimination would constitute a 

prohibited personnel practice under 5 U.S.C. § 2302(b)(1), it is not appealable 

under 5 U.S.C. § 7702, as section 7121 requires. 

Cantrell v. Department of Health and Human Services CB-7121-92-0028-V-1 

(November 23, 1992) 55 M.S.P.R. 600 (1992) 

Where an arbitrator affords the appellant full relief from the appealable 

action, there is no longer a matter at issue over which the Board has section 7121 

jurisdiction. In the absence of an otherwise appealable action, the Board does not 

have authority over the appellant's request that it review her discrimination claims 

because the appeal is not then "mixed." 
Military Matters 

Boulineau v. Department of the Army AT-0752-90-0622-I-1 (April 21, 1993) 

57 M.S.P.R. 244 (1993) 

The Board will not review issues relative to "military employees and matters 

which are inherently of a military nature." As to civilian employees of military 

agencies, however, where the basis for the removal is not a matter that is subject 

to the military exception, the Board may consider a discrimination claim raised on 

appeal of a matter that is properly before it. 

Reduction in Force 

Brown v. U.S. Postal Service SL-0752-93-0054-I-1 (July 21, 1993) 58 

M.S.P.R. 345 (1993) 

In this decision on an interlocutory appeal of the administrative judge's 

ruling that the appeal was within the Board's jurisdiction, the Board ruled that the 

Postal Service's nationwide "restructuring" constituted a reorganization requiring 

adherence to Federal reduction in force regulations when releasing employees from 

their competitive levels by demotion. The Board found that the appellant was a 

preference eligible veteran entitled to appeal a demotion by RIF, that his 

assignment to a position in a different pay schedule with a lower rate of pay 

constituted a demotion despite any entitlement to retained grade and pay, and that 

the appellant's acceptance of the agency's offer of assignment did not render the 

action voluntary and thus unappealable. The Board, therefore, remanded the 

appeal to the administrative judge for adjudication. 

PROCEDURES 

Bergman v. Department of Justice DE-0353-90-0480-C-2 (December 2, 

1992) 56 M.S.P.R. 42 (1992) 

In this case, the Board rejected the appellant's assertion that the action of 

the administrative judge or the agency, in telephoning him at work in connection 

with his petition for enforcement, constituted error. Once the appellant filed the 

petition without a specific request that such appeal-related calls not be made, his 

acquiescence to them must be inferred. 

RETIREMENT STATUS/ APPEALABILITY OF ACTION 

Drumheller v. Department of the Army PH-0752-91-0279-I-1 (October 30, 

1992) 55 M.S.P.R. 441 (1992) 

Under the amendment adding subsection (j) to 5 U.S.C. § 7701, an adverse 

action that was never effected because the appellant retired on or before its 

scheduled effective date remains unappealable, as before the amendment. Under 

the amendment, an appellant's right to appeal an action that was effected is 

unchanged by a decision to retire after that action is taken. Where the appellant 

retires under the discontinued service retirement provisions of the law, however, 

and thereby prevents her removal from being effected, the Board does not lose 

jurisdiction over the removal where, in the absence of the removal, the appellant 

would not have been eligible for the retirement. 
Coltin v. Department of the Navy SF-0752-91-0204-I-1 (November 19, 

1992) 56 M.S.P.R. 3 (1992) 

The Board found here that the appeal of a removal action, effected before 

the grant of the appellant's disability retirement application, remains viable under 5 

U.S.C. § 7701(j) even though the application is granted retroactive to the effective 

date of the removal. 

RETIREMENT 

Malan v. Department of the Air Force & Office of Personnel Management DE831E-90-02224-1 and DE-0752-90-02374-1 (October 22, 1992) 55 M.S.P.R. 283 

(1992) 

The appellant's position at the time his application for disability retirement is 

forwarded to OPM is the one as to which he must prove disability. A later change of 

position does not render the application moot, the Board ruled, but voluntary 

acceptance of a demotion would constitute the withdrawal of his application and 

reassignment to another position would constitute evidence that he was not 

disabled for a position at the same pay and grade. 

Torallo v. Office of Personnel Management SE-831E-92-0034-M-1 (January 

21, 1993) 56 M.S.P.R. 294 (1993) 

The Board found in this case that the death of a disability retirement 

applicant does not terminate his legal interest in the continued processing of his 

appeal. Thus, the appeal may continue despite his death. Where the applicant 

elected a survivor annuity, the widow is a proper person to substitute for the 

applicant. 

Hobbs v. Office of Personnel Management SF-0831-92-0260-I-1 (September 

2, 1993) 58 M.S.P.R. 628 (1993) 

The Office of Personnel Management had determined that a Special 

Inspector with the Department of Treasury's Bureau of Alcohol, Tobacco and 

Firearms is not entitled to preferential retirement credit for service as a law 

enforcement officer, and the Board agreed. While the Special Investigator's duties 

were "primarily investigative," the Board reasoned, the purpose of the 

investigations was to encourage legitimate businesses in the alcoholic beverage 

industry to comply with Federal law, rather than to prosecute them criminally. The 

latter is required by statute for special retirement credit. 

SETTLEMENT 

Dial v. Department of the ArmySE-1221-92-0127-X-1 (March 17, 1993) 56 

M.S.P.R. 617 (1993) 

The settlement agreement in this appeal provided that all information 

pertaining to the settled termination action would be expunged. The Board found 

that, to be in compliance with this provision, the agency may not keep a paper trail 

of documents showing the termination and its cancellation. 
Sternberg v. Department of Transportation NY-531D-86-0013-X-1 (February 

25, 1993) 56 M.S.P.R. 520 (1993) 

An administrative judge's reference to portions of a settlement agreement in 

a compliance initial decision does not violate the agreement's confidentiality 

provision, the Board decided here. Because administrative judges are required to 

make findings when a party petitions for compliance with a settlement agreement, 

they must discuss the settlement terms. The Board noted that it was not a party to 

the agreement in any event and that its regulations put parties on notice that its 

decisions are available to the public. 

TIMELINESS 

Holland v. Department of the Air Force DA-0752-90-0563-I-1 (March 15, 

1993) 56 M.S.P.R. 592 (1993) 

The Board here reaffirmed its holding that a pleading filed via a private 

express company is deemed filed by personal delivery under its regulations, with 

the date of filing being the date of receipt by the Clerk of the Board. Because of the 

Clerk's long-standing administrative practice of accepting such filings as having 

been made on the date they are deposited with the private express company, 

however, the Board held that it is appropriate to waive the filing deadline where a 

pleading is deposited with a private express company by the deadline. 

[NOTE: Subsequent to its decision in Holland, the Board revised its 

regulations to provide that the date of filing by commercial overnight delivery is the 

date the pleading is deposited with the private express company. 58 Fed. Reg. 

36345 (July 7, 1993)] 

WHISTLEBLOWER PROTECTION ACT 

Preface 

The Whistleblower Protection Act (WPA) prohibits agencies from taking, 

threatening to take, or failing to take personnel actions against employees because 

of their disclosures of information concerning Government wrongdoing. In deciding 

whether the Board has the authority or jurisdiction to consider an employee's claim 

of reprisal for whistleblowing in an individual right of action (IRA) appeal, and, 

therefore, the authority to order corrective relief, the Board must first find three 

things: (1) that the agency took a "personnel action," as defined by the WPA, 

against the employee, (2) that the employee first sought relief from the Office of 

Special Counsel, and (3) that the employee reasonably believed that the information disclosed concerned "a violation of any law, rule, or regulation" or "gross 

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

and specific danger to public health or safety." If the Board finds these three 

things, it can then consider the appellant's claim that the agency took the 

personnel action because of his or her whistleblowing. 
Jurisdiction — Protected Activity 

Dean v. Department of the ArmyAT-1221-92-0055-W-1 and AT-1221-92-

0216-W-1 (May 5, 1993) 57 M.S.P.R. 296 (1993) 

The Board found in this case that an agency's act allegedly in reprisal for an 

appellant's having filed a complaint with the Office of Special Counsel is not 

appealable to the Board as an individual right of action appeal under the 

Whistleblower Protection Act. It constitutes a protected activity under 5 U.S.C. § 

2302(b)(9), not (b)(8). 

Jurisdiction — Personnel Action 

Weaver v. Department of Agriculture DE-0752-91-04084-1 (November 23, 

1992) 55 M.S.P.R. 569 (1992) 

Where an agency decides to suspend an appellant while he is receiving 

benefits from the Department of Labor's Office of Workers' Compensation for an 

on-the-job injury, the Board determined that it lacked jurisdiction over the action 

under 5 U.S.C. Chapter 75. Such an agency action that has been decided on and 

recorded in the appellant's official personnel file, however, constitutes a "personnel 

action" over which the Board may have individual right of action jurisdiction under 

5 U.S.C. § 1221. 

Merits Issues 

Nafus v. Department of the Army NY-0432-91-0502-I-1 (May 5, 1993) 57 

M.S.P.R. 386 (1993) 

The Board defined two important statutory terms in this case. "Gross waste 

of funds" constitutes "a more than debatable expenditure that is significantly out of 

proportion to the benefit reasonably expected to accrue to the Government." 

"Gross mismanagement," on the other hand, constitutes "a management action or 

inaction which creates a substantial risk of significant adverse impact upon the 

agency's ability to accomplish its mission." The issue then becomes whether the 

appellant genuinely and reasonably believes that he or she has disclosed gross 

waste or gross mismanagement. 

Dean v. Department of the Army AT-1221-92-0055-W-1 and AT-1221-92-

0216-W-1 (May 5, 1993) 57 M.S.P.R. 296 (1993) 

The Board expanded on its finding in Nafus here, ruling that it was proper to 

consider the nature of the appellant's job in determining whether he had a 

reasonable belief in the truth of his disclosures, because that factor could affect 

whether the belief is genuine. 

Kent v. General Services Administration DC-0752-90-0241-I-1 (March 8, 

1993) 56 M.S.P.R. 536 (1993) 

In this appeal, the Board held that the language and the legislative history of 

the Whistleblower Protection Act, which protects disclosures "not specifically 

prohibited by law," show a clear legislative intent to limit the quoted term to 

statutes and court interpretations of those statutes. Thus, the Federal Acquisition 

Regulations do not constitute such a law, but the Trade Secrets Act does. 
APPENDIX C - SIGNIFICANT BOARD DECISIONS - 

ORIGINAL JURISDICTION CASES 

This appendix contains summaries of significant original jurisdiction cases 

decided by the Board during Fiscal Year 1993. 

Board decisions are published in West Publishing Company's United States 

Merit Systems Protection Board Reporter. The M.S.P.R. citations below are to that 

publication. 

SPECIAL COUNSEL DISCIPLINARY ACTIONS - HATCH ACT 

Federal/DC Government Employees 

Special Counsel v. Campbell CB-1216-92-0001-T-1 (June 22, 1993) 58 

M.S.P.R. 170 (1993) 

The Board held that a Federal employee who ran as an independent in a 

partisan election in Alexandria, Virginia, sought and obtained the endorsement of a 

national political party, stated in his campaign literature that he was endorsed and 

fully supported by that party and was a full member of its ticket, and received the 

same services from the party that its candidates received, was not in fact an 

independent candidate and, therefore, was in violation of 5 U.S.C. § 7324(a). The 

Board also held that its authority to enforce the Hatch Act preempts a State's 

definition of an independent candidate. The Board must interpret the words of the 

Hatch Act in light of the purpose Congress sought to serve. Because the employee 

was not an independent, he did not fall within the exemption contained in the OPM 

regulation permitting Federal employees to run for office as independents in certain 

areas, including Alexandria, Virginia. By unanimous vote, the Board held that the 

Hatch Act violation in this case did not require removal. Consideration of mitigating 

factors was appropriate in determining the proper penalty to be imposed, and a 30-

day suspension was ordered. 

Special Counsel v. Dominguez CB-1216-92-0014-T-1 (December 3, 1992) 55 

M.S.P.R. 652 (1992) 

The Board held that removal of an employee of the District of Columbia 

Government was an appropriate penalty to impose for his violation of the Hatch Act 

by running as the Republican candidate for county sheriff in Virginia. The Board 

noted that his employer had cautioned him against his candidacy and found that it 

was irrelevant that the partisan activity was in a different jurisdiction from the one 

in which he worked. 

Special Counsel v. Lee CB-1216-92-0002-T-1 (June 10, 1993) 58 M.S.P.R. 

81 (1993) 

The Board sustained the charge that the respondent, a Federal employee, 

had taken an active part in the mayoral campaign in D.C. in concert with a partisan 

political party in violation of the Hatch Act. The Board noted that under 5 U.S.C. § 

7325, a Hatch Act violation through participation in a campaign requires removal 

unless the Board unanimously decides that removal is not required. The Board 

found that removal was warranted in this case despite the respondent's argument 

that lesser penalties had been imposed in other cases in which there had been 

settlements. The Board declined to require absolute uniformity between cases that 

are settled and those that are not because of the public policy in favor of 

encouraging settlements. 
Related Decision - Stay of Board Order Pending Judicial Review 

Special Counsel v. Campbell CB-1216-92-0001-S-1 (August 3, 1993) 58 

M.S.P.R. 455 (1993) 

The Board denied the respondent's request to stay its order directing the 

agency to suspend him for 30 days, based on a finding that he had violated the 

Hatch Act, pending judicial review. The Board found that the respondent had not 

established that there was a likelihood he would succeed on the merits in his 

appeal to the Federal Circuit, that he would suffer irreparable harm if he was 

suspended, that other interested parties would not be harmed by the granting of 

the stay, or that the public interest would be served by the issuance of the stay. 

State/Local Government Employees 

Special Counsel v. Bianchi & Allegheny County Department of Development 

& Allegheny County Department of Tax Claims and Revenue CB-1216-92-0027-T-1 

(June 10, 1993) 57 M.S.P.R. 627 (1993) 

The Board held that the respondent violated the Hatch Act by running as a 

Democratic candidate for town council while employed by a local agency in 

connection with a federally-funded activity and that this violation warranted 

removal. The Board found that the respondent willfully violated the Hatch Act, 

acting in deliberate disregard of the law in spite of having never received a Special 

Counsel warning letter, based on his knowledge that the matter had been referred 

to the Special Counsel and on his having read legal memoranda discussing the 

Hatch Act's coverage. 

Special Counsel v. Blackburne & State of New York Office of Alcoholism and 

Substance Abuse CB-1216-92-0023-T-1 (July 8, 1993) 58 M.S.P.R. 279 (1993) 

The Board held that the respondent, who was employed by a State agency in 

connection with a federally-funded activity, violated the Hatch Act by becoming a 

candidate for partisan election to the New York City Council, despite the fact that 

he was on leave of absence. In determining that removal was the appropriate 

penalty, the Board found that the respondent's violation was willful. Although the 

agency had advised him earlier that a leave of absence would avoid a violation, the 

Board noted that at the time of the violation the agency clearly informed him 

that its earlier view was incorrect. The Board noted that he received at least three 

clear warnings from the agency with respect to his candidacy and no conflicting 

advice. 

Special Counsel v. Fields & Southeastern Center for Mental Health, 

Developmental Disabilities and Substance Abuse Service CB-1216-92-0034-T-1 

(April 12, 1993) 57 M.S.P.R. 60 (1993) 

The Board held that the respondent, an employee of a State agency, 

participated in a partisan election in violation of the Hatch Act and that her removal 

was warranted. The respondent failed to respond to the Special Counsel's complaint alleging a violation of the Hatch Act. Such a failure is considered an 

admission of the allegations in the complaint under 5 CFR § 1201.125(a). The 

Board noted that a party before the Board ignores a Board order at his/her own 

peril. The Board held that a response to a Special Counsel complaint that does not 

address or deny either that the respondent was a covered employee or that there 

was a candidacy in a partisan election will be deemed insufficient to defeat the 

Special Counsel's allegations of a Hatch Act violation. 
Special Counsel v. Jakiela & Allegheny County Department of Development 

CB-1216-92-0021-T-1 (April 19, 1993) 57 M.S.P.R. 228 (1993) 

The Board held that the respondent, who was employed by a local agency in 

connection with Federal funds, violated the Hatch Act when he participated in a 

partisan election as a Democratic Party candidate. In finding that the penalty of 

removal was appropriate, the Board rejected the respondent's argument that no 

penalty should be imposed because the violation was based on a mistaken belief 

that there was no bar to his candidacy since his salary did not come from Federal 

funds. Under the facts of the case, the Board determined that knowledge of the 

Hatch Act's prohibitions could be imputed to the respondent. 

Special Counsel v. Spickard & Virginia Department of Forestry CB-1216-92-

0022-T-1 (June 22, 1993) 58 M.S.P.R. 108 (1993) 

The respondent, who was employed by a State agency in connection with a 

federally-funded activity, was charged with violating the Hatch Act by being the 

Republican candidate for county sheriff in a general election in 1991. The parties 

reached a settlement that the Board's Chief Administrative Law Judge (CALJ) 

recommended the Board adopt. In rejecting the settlement agreement and 

remanding the case to the CALJ, the Board noted that, while it favors settlement 

agreements, it could not approve this agreement because it called for the U. S. 

Department of Agriculture and the State agency for which the respondent works to 

agree on the time and manner for withholding certain funds from Federal grants to 

the agency. The Board also noted that such a provision would be subject to abuse 

and difficult to enforce because it does not provide for a starting date or a rate for 

withholding, and, if the parties were unable to agree, the Board would be unable to 

enforce the settlement agreement. 

Special Counsel v. Williams & Governor's Office for Individuals with 

Disabilities State of Maryland CB-1216-92-0009-T-1 (January 21, 1993) 56 

M.S.P.R. 277 (1993) 

The Special Counsel charged the respondent with violation of the Hatch Act 

when she ran for partisan political office while serving in a position in an executive 

agency in the State of Maryland. The Board held that it lacked the authority to rule 

a statute unconstitutional and noted that, in any event, the Supreme Court has 

held that the Hatch Act is constitutional. The Board also held that the Act's 

application to her did not violate the First Amendment. The Board found that the 

respondent's employment was in connection with a federally-funded program, that 

she had violated the Hatch Act, and that she did not show that mitigation of the 

statutorily required penalty of removal was warranted. Based on the serious and 

conspicuous violation, the Board found the appellant's removal was warranted. 

Related Decision - Stay of Proceedings Pending Decision on Interlocutory 

Appeal 

Special Counsel v. Bissell, et al. & Public Service Commission of the State of 

Tennessee CB-1216-93-0016-T-1 and -0019-T-1 through -0032-T-1 (July 8, 1993) 

58 M.S.P.R. 274 (1993) 

The Special Counsel filed a complaint against the respondents for alleged 

violations of the Hatch Act. The respondents asserted that the case must be 

dismissed for lack of jurisdiction because their agency is not an executive branch 

agency within the State of Tennessee. The Board's Chief Administrative Law Judge 

certified an interlocutory appeal to the Board on the jurisdiction issue but did not 
stay the proceedings before him. The respondents then filed a motion with the 

Board seeking a stay. The Board found that the presiding official may stay a 

proceeding pending the outcome of an interlocutory appeal, or the Board may do 

so on its own motion. Here, where the stay request was more in the nature of a 

request for a continuance, it was appropriate to apply Board law concerning 

continuances rather than Federal court law regarding stays. The Board held that 

continuances will be granted on a good cause basis. The Board found that, because 

the jurisdictional issue must be decided before the merits of the case, there was 

good cause to stay the proceedings. 

SPECIAL COUNSEL STAY REQUESTS - WHISTLEBLOWER PROTECTION ACT 

Special Counsel v. Department of the Air Force CB-1208-92-0017-U-3 

(November 6, 1992) 55 M.S.P.R. 482 (1992) CB-1208-92-0017-U-4 (February 5, 

1993) 56 M.S.P.R. 368 (1993) 

The Special Counsel requested a second extension of the stay (granted in 

Fiscal Year 1992) of the removal of Ms. Maxwell. She asserted that delays in 

obtaining interviews and necessary agency files hampered her ability to complete 

the investigation, but that what had been gathered thus far supported her original 

determination that the proposed removal was in retaliation for protected conduct 

(filing of grievances and whistleblowing). In its decision of November 6, 1992, the 

Board granted a 90-day extension of the stay. The Special Counsel requested a 

third extension, stating that the investigation was complete but additional time was 

needed to complete the review process necessary to seek corrective action under 5 

U.S.C. § 1214. In its decision of February 5, 1993, the Board granted a further 90-

day extension of the stay. 

Special Counsel v. Department of Veterans Affairs CB-1208-93-0036-U-1 

(June 8, 1993) CB-1208-93-0036-C-1 and CB-1208-93-0036-U-2 (July 23, 1993) 

On June 8, 1993, the Special Counsel was granted a 45-day stay on the 

grounds that she believed Mr. Steen's reassignment and separation were effected 

in reprisal for his engaging in protected activity (disclosures of statutory and 

regulatory violations and abuse of authority) and, therefore, were in violation of 5 

U.S.C. § 2302(b)(8). The Special Counsel next filed a motion for enforcement of 

the stay and a request for extension. The agency filed a motion for termination of 

the stay, challenging the Special Counsel's investigation and presentation of the 

evidence. In its decision of July 23, 1993, the Board denied the agency's motion for 

termination of the stay and granted the Special Counsel's request for extension. In 

denying the agency's motion, the Board found that the agency failed to show that, 

when the record was viewed in the light most favorable to the Special Counsel, the 

stay was not appropriate under the facts and circumstances involved. The Board 

extended the stay for 90 days and dismissed the Special Counsel's motion for 

enforcement. 
Special Counsel v. Federal Aviation Administration CB-1208-93-0040-U-1 (July 21, 

1993) CB-1208-93-0040-U-2 and CB-1208-93-0040-U-3 (September 2, 1993) 

On July 21, 1993, the Special Counsel was granted a 45-day stay on the 

grounds that she believed Mr. Jennings was removed in retaliation for his filing of 

two grievances, activities protected by 5 U.S.C. § 2302(b)(9). The agency filed a 

motion to terminate the stay, which the Board denied in its decision of September 

2, 1993. Also on that date, the Board granted a 90-day extension of the stay in 

response to the Special Counsel's request. The Board noted that case law 

developed under the predecessor statute is not directly applicable to the current 

statute and held that the stay should be extended because the Special Counsel's 

prohibited personnel practice claim was not clearly unreasonable. 

Special Counsel v. Department of Transportation CB-1208-93-0048-U-1 

(September 29, 1993) 

The Chairman granted the Special Counsel's request for a 45-day stay of the 

reassignment of Mr. Armstrong. The Special Counsel argued that there were 

reasonable grounds to believe that the reassignment, which had already been 

effected, was the result of Mr. Armstrong's whistleblowing activities and his 

cooperation with the Inspector General. The Special Counsel said that the stay was 

needed to allow the office time to investigate further and to seek corrective action. 

The Chairman noted that the statute permits a stay of an action that has already 

been effected and that, while the lapse of time is to be considered, the Special 

Counsel had been active in pursuing the investigation from the beginning. 

PROPOSED ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES 

Social Security Administration v. Anyel CB-7521-91-0009-T-1 (June 25, 

1993) 58 M.S.P.R. 261 (1993) 

In an action against an administrative law judge based on her performance, 

the Board remanded the case to its Chief Administrative Law Judge for further 

proceedings. The Board held that an administrative law judge's adjudicatory errors 

can establish good cause for disciplinary action under 5 U.S.C. § 7521 and that 

such an action does not improperly interfere with the administrative law judge's 

decision-making independence. The Board disagreed with the CALJ's discovery 

ruling that evidence concerning the agency's Appeals Council's disposition of the 

respondent's cases was irrelevant. The Board found that, although it has no 

authority, per se, to review the decisions of the agency's Appeals Council, it must 

decide whether the charge of adjudicatory errors is supported, and these decisions 

are relevant to that issue. The Board also found that the respondent was entitled to 

the files of cases in which she was charged with having denied claimants the right 

to representation. The Board noted that under 5 CFR 1201.72(a) evidence is 

relevant if it "includes information that appears reasonably calculated to lead to the 

discovery of admissible evidence." 
REVIEW OF OPM REGULATIONS 

Pavlopoulos v. Office of Personnel Management and Department of the Navy 

CB-1205-93-0004-U-1 (August 30, 1993) 58 M.S.P.R. 620 (1993) 

The Board denied the petitioner's request to review the Navy's 

implementation of a provision of the Federal Personnel Manual (FPM) under 5 

U.S.C. § 1204(f)(2)(B). The Board ruled that the FPM provision relied on by the 

petitioner was substantially identical to a statute and that the Board does not have 

authority under section 1204(f) to review an agency's implementation of a 

statutory provision. The Board further found that, even assuming that this FPM 

provision is a rule for the purpose of section 1204(f), the record did not show that 

the Navy invalidly implemented this provision when it declined to promote the 

petitioner. 
APPENDIX D - SIGNIFICANT LITIGATION 

Significant litigation involving the Board during Fiscal Year 1993 included the 

following: 

WHISTLEBLOWER PROTECTION ACT 

Protected Disclosure 

Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992) 

The court affirmed the Board's holding that the petitioner's claim that his 

employing agency retaliated against him because he filed an equal employment 

opportunity complaint does not qualify as a protected whistleblower disclosure 

under 5 U.S.C. § 2302(b)(8) because it is protected under 5 U.S.C. § 2302(b)(9). 

Section 2302(b)(8) protects employees when they make disclosures they 

reasonably believe evidence a violation of any law, rule, or regulation, or gross 

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

specific danger to public health or safety. In contrast, section 2302(b)(9) protects 

employees from retaliation when they file an appeal, grievance or complaint. 

The court agreed with the Board's conclusion that the Congress intended to protect 

whistleblowers in section 2302(b)(8) and not to provide yet another protection for 

situations already covered by section 2302(b)(9). The court, therefore, affirmed the 

Board's dismissal of the petitioner's individual right of action appeal for lack of 

jurisdiction. 

The court also addressed the question of which agency, the Board or the 

employing agency, is the proper respondent before the court in appeals filed under 

5 U.S.C. § 1221. The Board is the proper respondent when the appeal involves 

purely jurisdictional or procedural questions, but the employing agency is the 

proper respondent when the Board's decision addresses the merits of the appeal. 

Contributing Factor 

Clark v. Department of the Army, 997 F.2d 1466 (Fed. Cir. 1993) 

The Federal Circuit affirmed the Board's decision sustaining the petitioner's 

demotion by reduction-in-force and her removal for cause and its finding that she 

did not establish that her alleged protected disclosures were a contributing factor in 

the personnel actions. The court held that the Board did not err in deciding whether 

the petitioner's disclosures were a contributing factor in the agency's actions 

without first deciding whether the disclosures were protected under 5 U.S.C. § 

2302(b)(8) because the Whistleblower Protection Act did not mandate any 

particular order of proof. In addition, the court found that neither the language of 

the Whistleblower Protection Act nor the legislative history mandated an inquiry 

into the deciding official's knowledge of the disclosure or the timing of the 

personnel action in relation to the disclosure. Although such factors are relevant to 

the contributing factor test, they are not dispositive. 
The court also found no error in the Board's evaluation of the agency's evidence of 

the propriety of the personnel actions. Such evidence should be considered in 

determining whether the employee has met the contributing factor test and 

evaluated under the preponderance of the evidence standard. If the employee 

meets that burden, the agency then must prove by clear and convincing evidence 

that it would have taken the same action in the absence of the disclosure. 

Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993) 

The petitioner filed an individual right of action appeal concerning his 

transfer to another position, asserting that it was based on whistleblowing 

disclosures protected under 5 U.S.C. § 2302(b)(8). The Board determined that the 

petitioner failed to show the disclosures were a contributing factor in the transfer, 

but the court disagreed. To satisfy the contributing factor test, the employee need 

not demonstrate that the agency had a retaliatory motive based on his or her 

status as a whistleblower. Rather, if the content of the employee's disclosures led 

to the challenged personnel action, this satisfies the employee's burden. The court 

remanded the appeal to give the agency an opportunity to prove by clear and 

convincing evidence that it would have taken the personnel action in the absence 

of the petitioner's disclosures. 

Special Counsel Disciplinary Actions 

Hathaway v. Merit Systems Protection Board, 981 F.2d 1237 (Fed. Cir. 1992) 

The court affirmed the Board's decision suspending the petitioner for 30 

days, finding substantial evidence that he threatened personnel actions against an 

employee who made protected whistleblowing disclosures. Citing Eidmann v. Merit 

Systems Protection Board, 976 F.2d 1400 (Fed. Cir. 1992), the court found that the 

Board should have determined whether the employee's whistleblowing was a 

significant factor, rather than a contributing factor, in the petitioner's actions. 

However, because the petitioner did not challenge the Board's use of the 

contributing factor test, the court accepted that standard for purposes of review. 

The court concluded that the Board properly applied that standard; direct evidence 

of the petitioner's retaliatory intent was not required. The court did not reach the 

issue of whether an accused management official in a Special Counsel disciplinary 

action may defeat the action by establishing by clear and convincing evidence that 

he or she would have taken the same personnel action in the absence of the 

employee's protected disclosures. 

INTERIM RELIEF 

Delaughter v. United States Postal Service, 3 F.3d 1522 (Fed. Cir. 1993) 

In an initial decision, the administrative judge sustained the agency's 

charges but mitigated the removal penalty to a 90-day suspension. The 

administrative judge ordered the agency to provide the appellant with interim relief 

pursuant to 5 U.S.C. § 7701(b)(2)(A) in the event the agency filed a petition for 

review. Interim relief constitutes returning the appellant to work or, alternatively, 

putting the appellant on administrative leave after making an express 

determination that returning him to the workplace would be unduly disruptive to 

the work environment. 
The agency filed a petition for review and evidence that it had placed the appellant 

on administrative leave. The majority of the Board found that the agency's failure 

to make an express determination that returning the appellant to the workplace 

would be unduly disruptive was a technical failure excused by the fact that the 

appellant received interim monetary relief in the form of administrative leave. On 

the merits, the Board majority reversed the administrative judge's mitigation of the 

penalty and sustained the removal. 

The court reversed, holding that the Postal Service failed to follow the 

appellate review procedure mandated by the Congress for petitions for review of an 

administrative judge's initial decision reversing an employee's removal and 

providing interim relief. The court further held that, by excusing as harmless error 

the agency's failure to make an "unduly disruptive" finding, the Board failed to 

enforce the agency's statutory obligation. The court remanded the case with 

instructions to dismiss the agency's petition for review. 

RETIREMENT 

Employees Removed for Inability to Perform 

Bruner v. Office of Personnel 

Management, 996 F.2d 290 (Fed. Cir. 1993) 

The petitioner was separated from service on the basis of his inability to 

perform the duties of his position and the unavailability of another position which 

he could fill. When he applied for disability retirement, the Office of Personnel 

Management denied his claim, and the Board's administrative judge affirmed the 

OPM decision. 

The court reversed and remanded based on its finding that the 

administrative judge misallocated the burden of proof. An appellant makes a prima 

facie showing of entitlement to a disability retirement when he shows that he was 

terminated because of an inability to perform the duties of his position. Such a 

showing creates a presumption of entitlement to disability retirement. This 

presumption is rebuttable by the Government, but the presumption shifts the 

burden of producing evidence to the Government to show that the employee is not 

sufficiently disabled to warrant disability retirement. However, the ultimate burden 

of persuasion on the issue of entitlement to a disability retirement still rests with 

the appellant. 

Notice of Election Rights 

Brush v. Office of Personnel Management, 982 F.2d 1554 (Fed. Cir. 1992) 

When Mr. Brush retired, he elected a reduced annuity to provide an annuity 

for Mrs. Brush. When the couple divorced, the divorce decree was silent as to the 

annuity, and no changes were made to the annuity. Mr. Brush died before the time 

had expired to restate his election. The Board affirmed the decision of the Office of 

Personnel Management denying Mrs. Brush's application for former spouse survivor 

annuity benefits. The Board found that Mrs. Brush did not qualify for a former 

spouse annuity under 5 CFR 831.622 or for an annuity as a surviving widow. 
The Federal Circuit affirmed the Board's decision that Mrs. Brush did not qualify for 

an annuity as a surviving widow or a former spouse. The court reversed the Board, 

however, on its holding that OPM is not required to send an annual notice to 

annuitants of their rights of election and remanded for findings on the effect of the 

lack of notice on the election time periods set out in 5 U.S.C. § 8339. The court 

held that 5 U.S.C. § 8339 requires that OPM notify annuitants annually of their 

rights of election and that OPM's regulation at 5 CFR 831.627 is invalid because it 

does not comport with this statutory mandate. 

SECURITY CLEARANCES/ INDEFINITE SUSPENSIONS 

Jones v. Department of the Navy, 978 F.2d 1223 (Fed. Cir. 1992) 

The court affirmed the Board's decision upholding the agency's indefinite 

suspensions of the petitioners pending a determination of whether their security 

clearances should be terminated. Upon completion of the agency's investigation, 

the petitioners were returned to duty. On appeal, the Board affirmed the 

suspension actions and rejected their claims to back pay for the 14 months they 

were suspended. 

The court rejected the petitioners' claim that they were denied due process 

because they were not given full information about the basis for the termination of 

their access to classified information. Citing Department of the Navy v. Egan, 484 

U.S. 518 (1988), the court held that there is neither a property right nor a liberty 

interest in access to classified material, and the loss of such access, therefore, did 

not implicate any due process rights. 

TIMELINESS 

Appeals Alleging Breach of Last Chance Settlement Agreements 

Clark v. United States Postal Service, 989 F.2d 1164 (Fed. Cir. 1993) 

The court affirmed the Board's finding that the agency's failure to give the 

petitioner notice of appeal rights when it reduced him in grade pursuant to a last 

chance settlement agreement in which he had waived his appeal rights did not 

excuse his untimely filed appeal to the Board. The court held that the agency had 

no obligation to notify the petitioner of his appeal rights because it took the action 

prior to the issuance of the court's decision in Stewart v. United States Postal 

Service, 926 F.2d 1146 (Fed. Cir. 1991), which clarified the Board's jurisdiction in 

last chance agreement cases. Therefore, the agency had no reason to know that 

the petitioner had appeal rights. 

The court announced a prospective rule that an agency becomes obligated to 

notify an employee of appeal rights in last chance agreement cases when the 

employee informs the agency that he or she contests the agency's assertion of 

breach of the agreement. The court further held that the Board may consider the 

employee's delay in so informing the agency in deciding whether the agency's 

failure to notify the employee of appeal rights constitutes good cause to waive the 

Board's filing deadline. 
APPENDIX E - MERIT SYSTEMS STUDIES AND REVIEWS OF 

OPM SIGNIFICANT ACTIONS 

MERIT SYSTEMS STUDIES 

The following are summaries of the Board's merit systems studies completed 

and published during Fiscal Year 1993: 

Federal Personnel Offices: Time For Change - This study examined the 

quality and timeliness of personnel work as viewed by Federal managers and 

employees of the personnel offices that provide them service. The functions discussed were position classification, recruiting, training, labor relations, and 

employee relations. The nearly 400 managers and personnelists interviewed largely 

agreed that the delivery of services was not as good as desired, but the 

personnelists held a much more positive view than the managers. 

The causes of problems were described as: (1) The Federal personnel 

system of rules and procedures is far too huge, complex, prescriptive, and rigid; 

(2) Personnel specialists are expected to be skilled, knowledgeable, and helpful but 

often are not; and (3) Some managers have not accepted responsibility for 

personnel management of the employees under their supervision, are not highly 

skilled in supervision, and are not in agreement on the role of the personnel office. 

The Board reported that all three parts of this equation are interdependent 

and must be addressed together in order for the personnel office to provide better 

service to managers and to become more valuable in accomplishing the mission of 

the organization. The report includes recommendations for bringing about such improvements. 

The Changing Face of the Federal Workforce: A Symposium on Diversity - 

This is a report of the proceedings of a symposium on workforce diversity that the 

Board convened in February 1993. The symposium was intended to heighten 

agencies' awareness of what managing diversity is all about and highlight what 

some agencies are doing in this area. The Board invited two panels of Federal 

officials known for their knowledge of the issues of diversity and for their stature in 

the Federal community. In addition, the Board invited a wide variety of participants 

involved in shaping or carrying out policies on diversity, from congressional and 

public policy organizations, Federal employee unions, professional organizations, 

personnel offices, and academia. Key issues were: 

• Productivity is enhanced when the work environment is supportive and 

nurturing, where employees feel they are valued and respected, and where their 

contributions are appreciated. 

• Efforts to manage diversity should not be confused with equal 

employment opportunity (EEO) and affirmative action programs. 

• A diverse workforce will succeed with the support and commitment of 

all levels of management, the union, and employees. 

• Managers must ensure that all employees are included, developed, and 

valued, and that their work environment is not hostile to any of them because they 

are "different." 

• Agencies' management of diversity will vary, depending on their needs, 

culture, problems, resources, mission, and external obligations. 
• Achieving a diverse workforce and managing diversity must be 

addressed together. 

Whistleblowing in the Federal Government: An Update - This study examined 

the extent to which Federal employees are observing and reporting illegal or 

wasteful activities and how well employees who report such activities are being 

protected against reprisal for "whistleblowing." The report, which updates a 1983 

Board report on whistleblowing, is based largely on a 1992 survey of over 13,000 

Federal employees. 

The study results showed a decrease in the percentage of employees who 

said they had observed an illegal or wasteful activity-18 percent in 1992, compared 

to 23 percent in 1983. The Board was encouraged to find that there was a dramatic 

increase in the percentage of these employees who reported the illegal or wasteful 

activities they observed-50 percent in 1992, compared to only 30 percent in 1983. 

Unfortunately, there was also an increase in the percentage of employees 

who said they had experienced reprisal or the threat of reprisal for reporting an 

illegal or wasteful activity-37 percent in 1992, compared to 24 percent in 1983. 

The study also found that the nature of the reprisal actions commonly experienced 

had changed somewhat; such actions now appear to be more subtle. 

The report recommended a number of ways in which agencies can better 

encourage employees to disclose information about illegal or wasteful activities 

they observe and protect employees who report such activities from reprisal. The 

recommendations focused on creating organizational climates in which sharing 

information about problems and working to resolve those problems is valued by all 

members of the organization. Included were suggestions for soliciting employees' 

views and providing feedback, educating employees about the kinds of problems 

they should share and how to go about sharing information, selecting supervisors 

and managers who will be receptive to employees' disclosures of problems, and 

implementing employee participation programs in which employees can feel 

comfortable sharing problems and ideas. 

The following reports, completed in Fiscal Year 1992, were published early in 

Fiscal Year 1993: 

A Question of Equity: Women and the Glass Ceiling in the Federal 

Government - A study examining career advancement in the Government and 

whether there are barriers that account for the underrepresentation of women in 

senior-level jobs. (Summary in Fiscal Year 1992 Annual Report) 

Federal Blue Collar Employees: A Workforce In Transition - A study of the 

people and systems that make up the Federal crafts and trades workforce, 

analyzing important issues from the perspectives of line managers, employees, 

personnel offices, and unions. (Summary in Fiscal Year 1992 Annual Report) 

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT 

The following reports, completed in Fiscal Year 1992, were published early in 

Fiscal Year 1993: 

Civil Service Evaluation: The Role of the U.S. Office of Personnel 

Management - A study of the role of OPM's personnel management evaluation 

(PME) program in providing oversight of personnel management in Federal 

agencies. (Summary in Fiscal Year 1992 Annual Report) 
Federal Personnel Research Programs and Demonstration Projects: Catalysts 

for Change - A study of OPM's accomplishments in promoting and overseeing 

research programs and demonstration projects under the authority granted by the 

Civil Service Reform Act. (Summary in Fiscal Year 1992 Annual Report)