United States 

Merit Systems Protection Board 

Annual Report for FY 2012 

January 31, 2013 
ii Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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iii Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Foreword

In accordance with section 1206 of Title 5, United States Code (U.S.C.), the U.S. Merit Systems 

Protection Board (MSPB) submits this annual report on its significant actions during fiscal year (FY) 

2012. This report includes summaries of the most significant Board decisions, relevant opinions 

issued by our reviewing courts during the year, case processing statistics, summaries of MSPB’s 

merit systems studies, and a summary of MSPB’s financial results. The report also contains a review 

of OPM significant actions and examines whether those actions are in accord with merit system 

principles and free from prohibited personnel practices. The review of OPM significant actions 

conducted under 5 U.S.C § 1206 is not, and should not be construed as, an advisory opinion (which 

is prohibited under 5 U.S.C. § 1204(h)). In addition, where there have been significant MSPB 

activities since the end of the fiscal year, the report includes updated information as a service to the 

reader. 

Additional information about FY 2012 program performance results will be available in the Annual 

Performance Report and Plan (APRP) published in conjunction with the Congressional Budget 

Justification. Financial accountability and audit information is included in MSPB’s Annual Financial

Report (AFR), published in November. MSPB Annual Reports and APRPs are posted on MSPB’s 

website, www.mspb.gov, when they are released.
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Table of Contents

 Page

Introduction....................................................................................................................1

About MSPB................................................................................................................................................. 1

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

MSPB Offices and Their Functions.......................................................................................................... 4

MSPB Organization Chart.......................................................................................................................... 6

Fiscal Year in Review .................................................................................................... 7

Adjudication and Enforcement.................................................................................................................. 7

Merit Systems Studies.................................................................................................................................. 8

The Significant Actions of the Office of Personnel Management....................................................... 8

Outreach and Merit Systems Education................................................................................................... 8

International Activities ................................................................................................................................ 9

Legislative and Congressional Relations................................................................................................... 9

Internal Management Activities and Challenges ................................................................................... 11

Significant External Trends and Issues................................................................................................... 12

Summary of Revisions to MSPB Adjudication Regulations ........................................17

Significant Board Decisions and Court Opinions Issued in FY 2012..........................21

Significant Board Decisions Fiscal Year 2012 ....................................................................................... 21

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit......................... 30

Significant Opinions Issued by the U.S. Supreme Court..................................................................... 34

Case Processing Statistics ........................................................................................... 35

Summary of Cases Decided by MSPB.................................................................................................... 35

Summary of Cases Processed in the Regional and Field Offices ....................................................... 36

Headquarters Case Processing ................................................................................................................. 45

Summaries of Merit Systems Studies ...........................................................................51

Employee Perceptions of Federal Workplace Violence....................................................................... 51

Managing Public Employees in the Public Interest: Employee Perspectives on 

Merit Principles in Federal Workplaces........................................................................................... 51

Federal Employee Engagement: The Motivating Potential of Job Characteristics 

and Rewards......................................................................................................................................... 52

Issues of Merit Newsletter........................................................................................................................ 52

Significant Actions of the U.S. Office of Personnel Management.............................. 55

Human Capital Management Policy........................................................................................................ 55

Delivery of Services and Benefits............................................................................................................ 67

Financial Summary.......................................................................................................71
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1 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

U.S. Merit Systems Protection Board

Fiscal Year 2012 Annual Report

Introduction

In accordance with section 1206 of Title 5, United States Code, the MSPB annual report provides 

information on MSPB’s significant actions during fiscal year (FY) 2012. The report includes 

summaries of the most significant Board decisions and relevant Court opinions issued during the 

year, case processing statistics, summaries of MSPB’s merit systems studies, and summaries of the 

significant actions of the Office of Personnel Management (OPM). In addition, this report includes 

a summary of the first comprehensive revision of MSPB adjudication regulations in 5 C.F.R. 1200, 

1201, 1203, 1208, 1209 since MSPB’s founding. The report contains summaries of the Board’s 

financial status, legislative and congressional relations activities, international activities, internal 

management issues, and the external factors that affect our work. When there have been significant 

activities or events since the end of the FY, the report includes updated information as a service to 

its stakeholders. 

About MSPB

MSPB has its origin in the Pendleton Act of 1883, which was passed following the assassination of 

President Garfield in 1881 by a frustrated Federal job seeker. The Pendleton Act created the Civil 

Service Commission (CSC) and provided the foundation for improvements in Government efficiency 

and effectiveness by helping to ensure that a stable, highly qualified Federal workforce, free from 

partisan political pressure, was available to provide effective service to the American people. 

Over time, it became clear that the CSC could not properly, adequately, and simultaneously set 

managerial policy, protect the merit systems, and adjudicate employee appeals. Concern over the 

inherent conflict of interest in the CSC’s role as both rule-maker and judge was a principal 

motivating factor behind the passage of the Civil Service Reform Act of 1978 (CSRA). The CSRA 

replaced the CSC with three new agencies: MSPB as the successor to the Commission; the Office of 

Personnel Management (OPM) to serve as the President’s agent for Federal workforce management 

policy and procedure; and the Federal Labor Relations Authority (FLRA) to oversee Federal labormanagement relations.

1

MSPB inherited the adjudication functions of the CSC by providing due process to employees and 

agencies as an independent, third-party adjudicatory authority for employee appeals of adverse 

actions and retirement decisions. Since the CSRA, Congress has given jurisdiction to MSPB to hear 

cases and complaints filed under a variety of other laws.2 MSPB was given the authority to develop 

its adjudicatory processes and procedures, issue subpoenas, call witnesses, and enforce compliance 

with final MSPB decisions. MSPB was also granted broad new authority to conduct independent, 

 

1 Bogdanow, M., and Lanphear, T., History of the Merit Systems Protection Board, Journal of the Federal Circuit 

Historical Society, Volume 4, 2010.

2 Including the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; the 

Veterans Employment Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act (WPA), Pub. 

L. No. 101-12, 103 Stat. 16; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 5 C.F.R. § 5 Code of Federal 

Regulations (C.F.R.) § 1201.3.
2 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

objective studies of the Federal merit systems and Federal human capital management issues. In 

addition, MSPB was given the authority and responsibility to review and act on the regulations of 

OPM and review and report on the significant actions of OPM.3 The CSRA also codified for the 

first time the values of the merit systems as the merit system principles (MSPs) and delineated 

specific actions and practices as the prohibited personnel practices (PPPs) that were proscribed 

because they were contrary to merit system values.4

Board Members

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

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

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

SUSAN TSUI GRUNDMANN

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President Barack Obama 

to serve as a Member and Chairman of the U.S. Merit Systems 

Protection Board on July 31, 2009. She was confirmed by the U.S. 

Senate on November 5, 2009, and sworn in on November 12, 2009. 

Chairman Grundmann’s term expires on March 1, 2016. 

Previously, Ms. Grundmann served as General Counsel to the National 

Federation of Federal Employees (NFFE), which represents 100,000 

Federal workers nationwide and is affiliated with the International 

Association of Machinist and Aerospace Workers. At NFFE, she 

successfully litigated cases in the U.S. District Court for the District of Columbia and the U.S. Court 

of Appeals for the District of Columbia. In 2004, Ms. Grundmann represented NFFE and other labor 

unions in the statutory “meet and confer” process with officials from the Department of Homeland 

Security (DHS) and OPM, which sought agreement on how to proceed with new DHS personnel 

regulations. She represented NFFE and the United Department of Defense Workers Coalition, 

consisting of 36 labor unions, and served on the Coalition’s litigation team in a coordinated response 

to proposed personnel changes at the Department of Defense (DoD). In addition to DoD employees, 

Ms. Grundmann represented employees in the Forest Service, Department of Agriculture, Passport 

Service, Veterans Administration, General Services Administration, and some 25 additional Federal

agencies. From 2003 to 2009, she was a regular instructor on Federal sector labor and employment law 

at the William W. Winpisinger Education Center in Placid Harbor, Maryland. Prior to joining NFFE, 

Ms. Grundmann served as General Counsel to the National Air Traffic Controllers Association. She 

began her legal career as a law clerk to the judges of the Nineteenth Judicial Circuit of Virginia, and 

later worked in both private practice and at the Sheet Metal Workers National Pension Fund. 

Chairman Grundmann earned her undergraduate degree at American University and her law degree at 

Georgetown University Law Center. 

 

3 Pursuant to Title 5 U.S.C. § 1204(f), MSPB may on its own motion, or at the request of other parties, review and 

declare invalid OPM regulations if such regulations, or the implementation of such regulations, would require an 

employee to commit a PPP. Pursuant to 5 U.S.C. § 1206, MSPB is also responsible for annually reviewing and reporting 

on the significant actions of OPM.

4 Title 5 U.S.C. § 2301 and § 2302, respectively.
3 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

ANNE M. WAGNER

Vice Chairman

November 2009 to Present

Anne M. Wagner was nominated by President Barack Obama to 

serve as a Member of the U.S. Merit Systems Protection Board with 

the designation of Vice Chairman on July 31, 2009. Her nomination 

was confirmed by the U.S. Senate on November 5, 2009, and she 

was sworn in November 12, 2009. Ms. Wagner’s term expires on 

March 1, 2014.

Ms. Wagner came to the Merit Systems Protection Board after 

serving as General Counsel of the Personnel Appeals Board of the 

U.S. Government Accountability Office (GAO). Prior to that, Ms. 

Wagner was appointed by the U.S. Comptroller General to serve a 

five-year statutory term as a Member of the GAO Personnel Appeals Board. Ms. Wagner began her 

career as a staff attorney in the Office of the General Counsel of the General Services 

Administration, where she primarily handled labor and employment issues. From there, she went on 

to become an Assistant General Counsel for the American Federation of Government Employees 

(AFGE), AFL-CIO, the largest Federal sector labor organization representing more than 600,000 

Federal and District of Columbia government employees. In her nearly twenty years with AFGE, 

she led precedent setting litigation and handled cases arising under the full array of laws governing 

Federal employment. Ms. Wagner graduated from the University of Notre Dame and received her 

J.D. from the George Washington University, National Law Center. She is admitted to practice law 

in the District of Columbia, Maryland, and Illinois as well as before various Federal courts, including 

the U.S. Supreme Court.

MARK A. ROBBINS

Member 

May 2012 to Present

Mark A. Robbins was nominated by President Barack Obama on 

December 5, 2011 to serve as a Member of the Merit Systems 

Protection Board. He was confirmed by the U.S. Senate on April 26, 

2012 and sworn in on May 16, 2012. Mr. Robbins' term expires on 

March 1, 2018.

At the time of his nomination, Mr. Robbins was the General Counsel 

of the U.S. Election Assistance Commission. In that capacity, Mr. 

Robbins worked to certify elections systems and maintain information 

on the best practices of conducting elections. He previously served as a 

Senior Rule of Law Advisor for the State Department in Babil Province, Iraq. Mr. Robbins also served 

as Executive Director of the White House Privacy and Civil Liberties Oversight Board between 2006 

and 2008 and as General Counsel of the Office of Personnel Management from 2001 to 2006. He 

worked in private practice as a litigation attorney in Los Angeles, California between 1988 and 2000, 

and in the White House Office of Presidential Personnel from 1984 to 1988. Mr. Robbins earned his 

undergraduate degree and his law degree from George Washington University. He is a member of the 

California and District of Columbia bars.
4 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

MARY M. ROSE

Vice Chairman 

January 2006 – November 2009 

Board Member 

November 2009 to March 1, 2012

Mary M. Rose was sworn in as a Board Member on December 28, 

2005, following her confirmation by the Senate on December 17, 

2005. She was designated by President Bush as Vice Chairman of the 

U.S. Merit Systems Protection Board on January 27, 2006, and served 

in that role until November 2009 when a new Vice Chairman was 

sworn in. Mrs. Rose’s appointment as Board Member expired on 

March 1, 2011. In accordance with statute, Mrs. Rose continued to 

serve as a Member of the Board until March 1, 2012.

Prior to joining the Board, Mrs. Rose was appointed by President Bush to serve as Vice Chairman of 

the Federal Salary Council. She was Chairman of the Federal Prevailing Rate Advisory Committee 

where she advised the Director of the U.S. Office of Personnel Management on Federal pay, 

benefits, and other policy issues. Previously, Mrs. Rose served as Deputy Associate Director of the 

Office of Presidential Personnel at the White House. She served four years as the Elected Clerk of 

the Circuit Court, Anne Arundel County, Maryland. Mrs. Rose has also served as Assistant Director 

for Executive Administration, Office of Personnel Management; Director of Personnel, White 

House Personnel Office; and Deputy Undersecretary for Management at the Department of 

Education. Her private sector experience includes positions as a consultant with an Annapolis law 

firm and as a Visiting Fellow with The Heritage Foundation where she recruited, interviewed, and 

recommended Presidential appointments to the George W. Bush transition team. Mrs. Rose

received an R.N. degree from the Bon Secours Hospital School of Nursing, and she completed the 

Maryland Registered Nurse Recertification Program in May 2000.

MSPB Offices and Their Functions

The agency is divided into seven headquarters offices in Washington, D.C., and eight regional and 

field offices located throughout the United States. The agency is currently authorized to employ 226 

Full-time Equivalents (FTEs) to conduct and support its statutory duties. 

The Board Members include the Chairman, Vice Chairman, and Board Member. The Board 

Members adjudicate the cases brought to the Board. The Chairman, by statute, is the chief executive 

and administrative officer of MSPB. The Office Directors report to the Chairman through the 

Executive Director.

The Office of the Administrative Law Judge (ALJ) adjudicates and issues initial decisions in 

corrective and disciplinary action complaints (including Hatch Act complaints) brought by the 

Special Counsel, proposed agency actions against ALJs, MSPB employee appeals, and other cases 

assigned by MSPB. The functions of this office are currently performed by ALJs at the U.S. Coast 

Guard, Federal Trade Commission, and Environmental Protection Agency under reimbursable 

interagency agreements. 

The Office of Appeals Counsel conducts legal research and prepares proposed decisions for the 

Board for cases in which a party files a Petition for Review (PFR) of an initial decision issued by an 
5 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Administrative Judges (AJ) and in most other cases decided by the Board. The office prepares 

proposed decisions on interlocutory appeals of rulings made by AJs, makes recommendations on 

reopening cases on the Board’s own motion, and provides research, policy memoranda, and advice 

to the Board on legal issues.

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

rules on certain procedural matters, and issues Board decisions and orders. The office serves as 

MSPB’s public information center, coordinates media relations, operates MSPB’s library and on-line 

information services, and administers the Freedom of Information Act (FOIA) and Privacy Act 

programs. The office also certifies official records to the courts and Federal administrative agencies, 

and manages MSPB’s records systems, website content, and the Government in the Sunshine Act 

program.

The Office of Equal Employment Opportunity plans, implements, and evaluates MSPB’s equal 

employment opportunity programs. It processes complaints of alleged discrimination brought by 

agency employees and provides advice and assistance on affirmative employment initiatives to 

MSPB’s managers and supervisors.

The Office of Financial and Administrative Management administers the budget, accounting, 

travel, time and attendance, human resources, procurement, property management, physical security, 

and general services functions of MSPB. It develops and coordinates internal management programs, 

including review of agency internal controls. It also administers the agency’s cross-servicing 

agreements with the U.S. Department of Agriculture (USDA), National Finance Center for payroll 

services, U.S. Department of the Treasury, Bureau of the Public Debt for accounting services, and 

USDA's Animal and Plant Health Inspection Service for human resources management services.

The Office of the General Counsel, as legal counsel to MSPB, advises the Board and MSPB 

offices on a wide range of legal matters arising from day-to-day operations. The office represents 

MSPB in litigation; prepares proposed decisions for the Board to enforce a final MSPB decision or 

order, in response to requests to review OPM regulations, and for other assigned cases; conducts the 

agency’s PFR settlement program; coordinates the agency’s review of OPM rules and regulations; 

and coordinates MSPB’s legislative policy and congressional relations functions. The office drafts 

regulations, conducts MSPB’s ethics program, performs the Inspector General function, and plans 

and directs audits and investigations. 

The Office of Information Resources Management develops, implements, and maintains 

MSPB’s automated information systems to help the agency manage its caseload efficiently and carry 

out its administrative and research responsibilities. 

The Office of Policy and Evaluation carries out MSPB’s statutory responsibility to conduct special 

studies of the civil service and other Federal merit systems. The office delivers reports of these 

studies to the President and the Congress and distributes them to a national audience. The office 

provides information and advice to Federal agencies on issues that have been the subject of MSPB 

studies. The office reviews and reports on the significant actions of OPM. The office also conducts 

special projects and program evaluations for the agency and has responsibility for preparing MSPB’s 

strategic and performance plans and performance reports required by the Government Performance 

and Results Act Modernization Act of 2010 (GPRAMA).
6 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

The Office of Regional Operations oversees the agency’s six regional and two field offices, which 

receive and process appeals and related cases. It also manages MSPB’s Mediation Appeals Program 

(MAP). AJs in the regional and field offices are responsible for adjudicating assigned cases and for 

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

MSPB Organization Chart

CHAIRMAN MEMBER

General Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional 

Operations

Appeals Counsel Policy and 

Evaluation

Regional Offices 

Atlanta, Chicago,

Dallas,

Philadelphia,

San Francisco, and 

Washington, DC 

VICE CHAIRMAN

Field Offices 

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

Human Resources Management services are provided by the U.S. Department of Agriculture’s (USDA), Animal 

and Plant Health Inspection Service (APHIS) Business Services. Payroll services are provided by USDA’s National 

Finance Center. Accounting services are provided by the Department of the Treasury, Bureau of the Public Debt.

The functions of the Administrative Law Judge (ALJ) are performed by ALJs employed by the Federal Trade 

Commission (FTC), the U.S. Coast Guard, and the Environmental Protection Agency (EPA) under reimbursable 

interagency agreements.

U.S. Merit Systems Protection Board
7 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Fiscal Year in Review

Adjudication and Enforcement

MSPB issued 7,585 decisions in FY 2012 including 6,523 initial decisions issued by the regional and 

field offices, and 1,050 decisions issued by the Board at headquarters. Headquarters and the regional 

and field offices continued to issue high quality decisions. The average processing times were within 

targets for initial appeals but were slower than the timeliness targets for PFRs and enforcement cases. 

MSPB provided a full menu of successful alternative dispute resolution options to its customers, 

including settlement programs in the regions, field offices, and headquarters, the Mediation Appeals 

Program, and the availability of AJs separately designated for settlement of a case. MSPB also 

continued its extensive outreach to its adjudication stakeholders including practitioner forums for 

agency and appellant representatives and other interested stakeholders in MSPB’s regional and field 

office communities. MSPB continued its partnership with local law school clinics in San Francisco and 

Denver to improve the availability of pro bono representation for pro se appellants. 

The agency continued its efforts to improve the transparency of its adjudication processes and 

decisions at headquarters. In early FY 2012, the Board heard oral arguments in Latham et al v. U.S. 

Postal Service, a set of cases involving restoration rights of employees suffering work-related injuries 

and the Board’s jurisdiction over such cases. The Board requested amicus briefs in other cases and 

expects to continue to request amicus briefs and/or to hear oral arguments in cases that have 

Governmentwide impact on the Federal civil service and the merit systems. The Board continued to 

issue expanded explanations of its decisions in non-precedential orders on PFRs and has made these 

orders available on MSPB’s website. This additional information improves the understanding of the 

Board’s decisions by the parties, is lauded by the Federal Circuit Court, and is available for others to 

promote the understanding of our process. 

In FY 2012, MSPB continued formal rulemaking in support of revising its adjudication regulations 

under 5 C.F.R. Sections 1200, 1201, 1203, 1208, and 1209. This is the first time these regulations 

have been completely reviewed and revised since MSPB’s founding in 1979. A summary of the 

revision process and contents of the new regulations is included in a separate section of this report. 

This report also contains brief summaries of the most significant Board decisions issued in FY 2012 

which addressed such issues as adverse actions, due process and harmful procedural error, 

jurisdiction, retirement, discrimination, Hatch Act, fitness for duty, whistleblower protection, 

compliance, performance-based actions, restoration, settlement, penalties, attorney fees, and 

reduction in pay. In addition, the report includes summaries of significant opinions relevant to 

MSPB’s work issued during FY 2012 by the U.S. Court of Appeals for the Federal Circuit and by the 

U.S. Supreme Court. 

In addition, this report contains case processing statistics for initial appeals decided by MSPB’s 

regional and field offices, and for PFRs and other cases decided by the Board at headquarters. Case 

processing statistics include the general type of cases (e.g., adverse action, reduction in force, 

performance, CSRS retirement, FERS retirement, individual right of action, USERRA, and VEOA) 

for both initial appeals and PFRs. The data also include the overall disposition of the cases including

the number dismissed (e.g., for lack of jurisdiction or lack of timeliness), or not dismissed. Of the 

initial appeals not dismissed, the data include the number settled and adjudicated on the merits. Of 

the initial appeals adjudicated on the merits, the data include the disposition of the action reviewed 

(e.g., the action was affirmed, reversed, mitigated or modified, or other). The data also include the 
8 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

disposition of initial appeals and disposition of initial appeals adjudicated on the merits according to

Federal agency. The data also include the disposition of the PFR (e.g., dismissed, denied, settled, 

granted, or denied but reopened) and the disposition of PFRs granted and denied but reopened 

(affirmed, reversed, remanded, mitigated, or other). The data also include the disposition of PFRs 

according to Federal agency. 

Merit Systems Studies

MSPB completed three external reports addressing employee perceptions of violence in Federal 

workplaces, motivating Federal employees through job design and rewards, and stewardship of the 

Federal workforce, as well as the FY 2011 MSPB Annual Report. MSPB published three editions of 

the Issues of Merit (IoM) newsletter. Summaries of MSPB study reports and newsletter topics are 

provided later in this report.

MSPB studies continued to be referenced by policy makers and in professional literature, legislation, 

and the media. For example, MSPB research on whistleblower protections and the experiences of 

Federal employees who observe wrongdoing in the workplace was cited by the Special Counsel as 

informing their recommendations to Congress for legislative change and providing educational 

materials to its stakeholders. In addition, OPM cited MSPB research to reinforce the importance of 

supervisory training in recently-issued guidance to Federal agencies.5 Interviews about several MSPB 

studies were conducted on Federal News Radio. MSPB recorded over 189,000 accesses to 53 MSPB 

reports, and almost 9,900 accesses to 16 editions of the IoM newsletter on its website.

The Significant Actions of the Office of Personnel Management

MSPB is responsible for providing an independent, nonpartisan review of the significant actions of 

OPM to ensure that these actions conform with MSPs and do not result in PPPs. MSPB reviewed 

OPM’s human capital management policy actions, ranging from those related to recruitment and 

hiring, final regulations for the Pathways Programs, Presidential transition guidance, the request for 

reconsideration of Conyers vs. Department of Defense, SES performance appraisals, advancing Federal 

telework, phased retirement, guidance on diversity and inclusion, and extending benefits to same-sex 

partners. MSPB reviewed OPM’s significant actions related to the delivery of benefits and services, 

including improving access to health insurance, USAJOBS 3.0, and reducing pending retirement 

claims. This year, MSPB staff met with OPM representatives about many of OPM’s significant 

actions to clarify issues and ensure accurate understanding of OPM’s actions. Summaries of these 

actions and their significance are included later in this report.

Outreach and Merit Systems Education

In FY 2012, MSPB staff conducted almost 150 outreach events with customers, stakeholders, and 

sister agencies on the merit systems, MSPs, and PPPs, MSPB’s adjudication processes and decisions, 

and its studies’ findings and recommendations. MSPB’s regional and field offices conducted 

practitioner forums with agency representatives, appellant representatives, union representatives, and 

other stakeholders about MSPB procedures, case law, and other legal issues related to Federal 

employment law. MSPB continued to increase its efforts to educate people about the concept of 

merit, MSPs, and PPPs through online activities, such as the MSP of the Month and PPP of the 

Month, which are the most visited webpages and the most accessed documents on MSPB’s website. 

 

5 U.S. Office of Personnel Management, Supervisory Training Fact Sheet, December 2012.
9 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

In FY 2012, MSPB had almost 260,000 visits to the MSPs, PPPs, IoM newsletter, case report, and 

training webpages, and nearly 3,800,000 hits (one or more document accessed per hit) to documents 

on these pages. MSPB continued its electronic outreach and communication activities through 

increased use of its Twitter account (@USMSPB) and recorded additional downloads of its mobile 

applications for the iPhone and Android. MSPB’s education and outreach efforts help enhance the 

understanding of merit, ensure that MSPs are consistently applied throughout the Government, 

reduce the likelihood of PPPs, promote better management practices, and strengthen employee 

engagement. This in turn improves employee and organizational performance, improves service to 

the American people, and provides value to the taxpayer. 

International Activities

During FY 2012, MSPB hosted or participated in several meetings with international representatives 

for the purpose of educating participants on the Federal merit systems, MSPB’s organization, and its 

responsibilities to protect the Federal merit systems. MSPB hosted the Chairman of the Agency for 

Civil Service Affairs for the Republic of Kazakhstan to discuss protecting the rights of civil service 

employees. MSPB officials met with a delegation from the Republic of Croatia to discuss 

government corruption and hosted delegations from several Chinese provinces with specific 

interests in performance management and assessing the efficiency of civil servants. MSPB officials 

also met with a French judge specializing in employment law who was able to observe a hearing 

before an AJ in MSPB’s Washington Regional Office. MSPB staff also participated in an outreach 

event with an Indonesian delegation interested in promoting accountability and transparency in 

Government agencies.

Legislative and Congressional Relations 

The term of former Member Mary M. Rose expired on March 1, 2011. Pursuant to the Board’s 

enabling statute, she continued to serve as Member until March 1, 2012 because no successor had 

been confirmed for the position. On December 5, 2011, President Barack Obama nominated Mark 

A. Robbins to serve as Member of the Board. The Senate confirmed his nomination on April 26, 

2012 and he was sworn into office on May 16, 2012. Mr. Robbins’ term expires on March 1, 2018. 

MSPB senior and legislative staff conducted two briefings on the Board’s FY 2012 budget request 

for congressional staff. As usual, one of the briefings was for the appropriations staff. This year, an 

additional briefing on the agency’s budget request was conducted at the request of Senate oversight 

staff. The Senate Committee on Homeland Security and Governmental Affairs Subcommittee on 

Oversight of Government Management, the Federal Workforce, and the District of Columbia 

conducted a hearing entitled: A Review of the Office of Special Counsel and Merit Systems 

Protection Board on March 20, 2012. Chairman Grundmann and Special Counsel Lerner testified at 

the hearing. Chairman Akaka was the only Senator on the panel. He expressed satisfaction with the 

performance of both agencies under their current leaders. He also expressed concern that each 

agency be provided with the funding resources necessary to accomplish their statutory missions.

Chairman Grundmann presented Senator Akaka with an honorary Theodore Roosevelt Award on 

March 20, 2012, for his "dedicated service and lasting contributions to the Federal merit systems and 

Federal workforce." Senator Akaka served as Chairman of the Senate Subcommittee on Oversight 

of Government Management, the Federal Workforce, and the District of Columbia. He retired from 

the Senate at the end of the 112th Congress.
10 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Congress passed the Whistleblower Protection Enhancement Act (WPEA) of 2012 (Public Law 112-

199), on November 13, 2012 and it was signed by the President on November 27, 2012. The WPEA

contains the most significant changes to whistleblower protections in almost two decades. This 

legislation amends the WPA to expand the scope of protected disclosures to include disclosures

made to the alleged wrongdoer, disclosures that were previously known, and disclosures made in the 

normal course of duties. In addition, the WPEA does not permit exclusion from coverage based on 

the motive for the disclosure or its timing, and the exclusion of claims based on disagreements with 

policy determinations was narrowed greatly. The law also protects the disclosure of “any” violation

of any law, rule, or regulation, and adds § 2302(b)(9)(A)(i), (B), (C), and (D) to the covered actions 

over which the Board has appellate jurisdiction. 

Additionally, these amendments: (1) provide whistleblower protections for all TSA employees; (2) 

authorize MSPB to impose disciplinary action if it finds that the protected activity was a "significant 

motivating factor" in the retaliatory action; (3) suspend, for 2 years, the exclusive jurisdiction of the 

U.S. Court of Appeals for the Federal Circuit over MSPB whistleblower cases (which permits 

appeals of MSPB decisions in these cases to be filed in any court of appeals of competent 

jurisdiction); (4) authorize MSPB to award compensatory damages if it awards corrective action in an 

Individual Right of Action appeal, as well as damages if it finds that an agency has conducted an 

investigation of an employee in retaliation for whistleblowing; and (5) require MSPB to include case 

processing data, including outcomes, in its annual performance reports. Except for TSA coverage,

which took effect on the date the law was signed, the WPEA took effect on December 27, 2012.

6

More information about how the WPEA may impact MSPB is provided in the section on external 

factors that may affect MSPB’s work.

The Hatch Act Modernization Act of 2012, was enacted on December 28, 2012, and takes effect on 

January 28, 2013. The Act broadens the scope of permissible political activities for some Federal, 

state and local employees. This bill permits state and local employees to run for partisan elective 

office unless their salary is paid entirely from Federal funding (through loans or grants). Federal 

employees who live in the District of Columbia may also run for local political office, and take an 

active role in political management and political campaigns to the same degree that residents of 

Maryland and Virginia who live in the immediate vicinity of the District of Columbia may engage in 

those activities.

The amendments to the Hatch Act also expand the range of penalties that may apply to violations of 

the Act by Federal employees. A Federal employee who violates the Hatch is now subject to 

removal, reduction in grade, debarment from Federal employment for a period not to exceed five 

years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.00. Under the 

previous statute, the penalty was removal unless the Board unanimously agreed that the violation did 

not warrant removal, in which case the Board was required to impose the penalty of a 30-day 

suspension without pay. These new penalty provisions for Federal employees apply retroactively to 

any violation that occurred before the effective date unless: (1) the Office of Special Counsel has 

presented a complaint for disciplinary action to the Merit Systems Protection Board; or (2) the 

Federal employee alleged to have violated the Hatch Act has entered into a signed settlement 

agreement with the Office of Special Counsel with respect to the alleged violation.

 

6 The updated text for the 8 sections of the U.S.C. changed by the WPEA is available on the MSPB website at 

http://www.mspb.gov/appeals/uscode.htm.
11 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Internal Management Activities and Challenges

In FY 2012, MSPB continued to focus on improving internal management to ensure delivery of 

mission and achievement of agency goals. To determine internal priorities, MSPB considered prior 

internal reviews, the current status of internal programs, the results of the FY 2011 Federal 

Employee Viewpoint Survey, and its efforts to walk-the-talk (or implement appropriate 

recommendations from MSPB merit system studies). In FY 2012, MSPB focused on improving 

overall employee engagement, the link between agency and SES performance and employee 

recognition, internal training and development, budget justifications, IT resources management, and 

safety and security. 

MSPB focused on various aspects of employee engagement including communication, linking 

performance and employee recognition, and training and development. Communication efforts 

included Chairman Grundmann conducting the first ever MSPB all-hands meeting of agency 

employees, followed by presentations by the Executive Director and Performance Improvement 

Officer about the new agency strategic and performance plans with all MSPB offices. MSPB began 

development of new SES performance plans linked to agency plans, and will continue this effort in 

FY 2013. Executive Committee subcommittees for training and development and for employee 

recognition were established to review and make recommendations for improvements in in these 

areas. Subcommittees included representatives from all offices (headquarters and the regional and

field offices) and employees at all levels of the agency. MSPB is currently in the process of 

implementing many of the recommendations made by these subcommittees. In addition, MSPB 

conducted a Legal Training Symposium in May 2012, which included sessions ranging from updates 

on MSPB legal precedent, to new MSPB regulations, and other administrative topics. MSPB 

University, an internal program for providing professional and personal development opportunities, 

provided eight courses ranging from Federal benefits, presentations from our sister agencies, stress 

reduction, and low-cost sources for training.

MSPB’s efforts to improve budget justification resulted in retention of proportionally more 

resources for FY 2012 than many other agencies, although we continue to operate below the 

resource level needed to execute our mission as effectively and efficiently as possible. MSPB also 

improved its management of IT resources replacing and upgrading standard employee laptop 

hardware and software, moving email to the cloud, and continuing improvements in IT backup 

facilities. An Executive Committee subcommittee was appointed to review and make 

recommendations to improve safety and security. Improvements in safety and security were 

implemented in FY 2012, including an interim safety and security plan. Further improvements, 

including more safety and security training, are intended for FY 2013.

MSPB implemented its new Strategic Plan for FY 2012-2016 which included changes that more 

thoroughly reflect MSPB’s broader role in protecting merit and preventing PPPs as intended by the 

Civil Service Reform Act of 1978 (CSRA). MSPB’s Annual Performance Plan (APP) for FY 2012 

was the first APP implemented under the new Strategic Plan. Successfully implementing these new 

plans will better protect merit systems, increase adherence to MSPs, and prevent or reduce PPPs 

which will ultimately result in better Federal management, improved Federal employee and agency 

performance, better service to the public, and increased value to American taxpayers. MSPB’s FY 

2012 program performance in relation to the FY 2012 APP will be available in the MSPB Annual 

Performance Report and Plan (APRP) in February 2013.
12 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Despite the progress made in these areas, MSPB continues to struggle with internal challenges

primarily related to retirement eligibility, increasing number of vacancies, limited resources, and 

competing priorities for existing resources. Almost one-third of MSPB employees and nearly 50% of 

MSPB’s AJs are eligible to retire in the next two years. MSPB does not have the resources to hire in 

advance of these retirements in order to ensure a smooth transition and transfer critical knowledge 

of the adjudication process. In addition, the number of writing attorneys who review legal issues and 

draft decisions for the Board members to consider has decreased significantly as several highly 

experienced writing attorneys have taken other positions at MSPB, transferred to other agencies, or 

retired. There are not sufficient resources to fill all these vacancies. In addition, once hired it takes 2-

3 years for an AJ or a writing attorney to become fully versed in the Board’s law and procedures. 

The average processing time for initial decisions and PFRs is increasing. In particular, PFR 

processing time has been higher than targeted levels in recent years, and the inventory of PFR cases 

is growing. MSPB will continue to emphasize adjudication decision quality and transparency over 

processing speed. Given these factors, it is likely that average processing time for initial decisions 

and PFRs will continue to increase. Efforts to strengthen MSPB’s review of OPM rules, regulations, 

and significant actions, improve the collection of important customer service information and 

conduct program evaluation is competing with fewer existing resources. Resource constraints and 

competing priorities may also affect MSPB’s ability to conduct outreach, especially if it involves 

travel or extensive preparation or staff time.

There are vacancies in other Board offices and several employees holding key positions are also 

eligible to retire in the near future. There are not sufficient resources to fill these vacancies, nor to 

hire in advance of retirement in key positions. In addition, MSPB experienced significant changes in 

agency leadership positions. The Director of the Office of Appeals Counsel (OAC) took another 

position within MSPB, the Director of Financial and Administrative Management (FAM) took a 

position in another agency, and the Director of the Office of Policy and Evaluation (OPE) retired.

These changes resulted in the loss of considerable agency expertise and knowledge impacting three 

of seven offices at headquarters as well as the agency as a whole. As resources permit, recruitment 

efforts to fill agency leadership positions and prioritize hiring of key staff are underway and will 

continue into FY 2013.

Efforts to strengthen MSPB’s review of OPM rules, regulations, and significant actions, improve the 

collection of important customer service information, and conduct program evaluation is competing 

with fewer existing resources. Although MSPB employees report high levels of commitment to the 

agency’s mission, resource issues are impacting employee morale. MSPB will continue to focus on 

strong internal management and communication in an effort to mitigate the impact of fewer 

resources. However, MSPB will continue to request and justify the resources it requires to conduct 

its mission and make clear the impact that resource constraints have on its performance. 

Significant External Trends and Issues 

The most significant external trends or issues affecting MSPB’s ability to carry out its mission to 

protect the Federal merit systems include the Federal budget, increasing retirements of Federal 

employees, changes in law and jurisdiction, changes in employee management flexibilities, and 

changes in government work. 

The Federal budget: Governmentwide actions to decrease Federal budgets include pay freezes, 

severe limitations in employee awards (for performance, special acts, quality step increases, or other 

purposes), and limits on within-grade increases. The freeze in Federal pay and limits on awards may 
13 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

increase retirement and adversely impact employee morale and productivity. Constraints on pay and 

awards may also shift employees’ attention to the application of performance appraisal systems and 

ratings, which could in turn increase performance-based appeals to MSPB. Budget reductions may 

also increase agency use of furloughs (involuntary temporary release from duty without pay), 

reductions in force (RIFs) to decrease the size of the workforce, actions taken in lieu of or of in 

preparation for RIFs, hiring delays or freezes, and reductions in training and development to save 

money. Historical trends indicate that increasing RIFs would lead to potentially large increases in the 

number of appeals filed with MSPB. 

Freezing employee pay and possible reductions in hiring and workforce training may also have longterm impacts on MSPs such as the efficiency and effectiveness of the workforce. It is logical to 

consider that employees’ personal financial stress may affect employee conduct, performance, or 

morale, but it is difficult to know specifically how those affects may manifest themselves.

Reductions or long delays in hiring and/or reductions in workforce training may affect the efficiency

and effectiveness of the workforce in terms of loss of expertise and workforce capacity to carry out 

the mission. It could take years for Federal agencies to recover from these issues. Emphasis on merit 

systems studies is important to continue studying the impact of these workforce changes on 

adherence to MSPs and avoidance of PPPs. It is also important to promote merit and educate the 

workforce, especially managers and leaders, about how to adhere to MSPs and to avoid PPPs when 

making management decisions such as those related to reducing the workforce.

Increasing retirements of Federal employees: The proportion of retirement-eligible Federal 

employees continues to increase. The number of Annuitants added to the Annuity Roll Processing 

System increased from 2010 to 2011 as the market improved. We would expect this number to 

increase in the next few years assuming the Thrift Savings Plan remains stable and agencies work to 

reduce their workforces. As retirements increase, we expect to see an increase in retirement appeals. 

In addition, OPM is reducing its backlog of retirement claims, increasing the number of retirement 

decisions that may be appealable to MSPB. Finally, the proportion of Federal Employee Retirement 

System (FERS) retirement claims to all retirement claims is increasing. According to OPM, FERS 

retirement claims are more complex than CSRS claims, thus appeals of FERS decisions filed with 

MSPB will likely take more time to process than CSRS claims. As the Government replaces retiring 

employees with relatively younger, less experienced employees, there is likely to be a decrease in the 

average age of the workforce. As this occurs, MSPB may see an increase in appeals as historical 

information indicates that less experienced employees typically have more appealable actions taken 

against them than do more experienced employees. 

Statutory changes in Federal retirement such as the new authority that phases in the opportunity for 

employees in the FERS to claim service credit toward retirement for their sick leave balance, and the 

potential to allow full-time Federal employees to phase their retirements or work in part-time status, 

may alter retirement rates and thus may impact retirement appeals. If Congress changes the 

retirement program, such as increasing the required level of employee contributions to their annuity, 

or changing the calculations for the annuity (such as basing the annuity on the average high five 

years instead of the average high three years) for current retirement-eligible employees, the 

Government could experience a surge in retirements, followed by a surge in retirement appeals to 

MSPB. 

Changes in law and jurisdiction: The most recent changes in law and jurisdiction involve the 

Postal Service’s National Reassessment Project (NRP), the WPEA, and the Hatch Act 

Modernization Act of 2012. While most Postal Service non-preference eligible employees do not 
14 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

have the right to appeal an adverse action to MSPB, restoration appeals from the USPS cover a 

much broader category of employees. On December 13, 2011, the Board heard oral arguments in 

Latham et al v. U.S. Postal Service, a set of over 70 cases involving restoration rights of Postal Service 

employees suffering work-related injuries and the Board’s jurisdiction over such cases. In these

cases, the Board affirmed the Postal Service’s obligation, based on its own rules, to restore 

employees who have been injured on the job to available work that is medically suitable, and the 

Board affirmed that MSPB has jurisdiction over appeals involving this issue. To the degree that 

more injured Postal Service employees are denied restoration, MSPB expects to see an increasing 

number of restoration-to-duty appeals from Postal Service employees. Depending on how these

cases are interpreted, it could increase the number of restoration-to-duty appeals to the Board from 

other Federal agencies. 

The modifications and supplemental coverage contained in the WPEA both extend coverage to 

matters not previously within the jurisdiction of MSPB and expand MSPB’s adjudicatory authority in 

such cases. The WPEA is likely to: increase the number of individual right of action (IRA) and 

otherwise appealable action whistleblower appeals; reduce the number of dismissals through the 

expanded definition of a protected disclosure; increase the complexity of whistleblower appeals in 

terms of content and review of MSPB decisions by multiple courts; increase the number of full 

hearings on such cases; increase the information and data collected and reported for such cases; 

increase travel to represent MSPB at various Circuit Courts; and increase addendum claims for 

attorney’s fees, damages or monetary awards, and enforcement of MSPB decisions. These changes 

will have dramatic effects on MSPB and will require the commitment of greater resources to enable

MSPB to implement Congress’s mandate. MSPB has established working groups comprised of 

representatives from all offices to facilitate smooth implementation of the WPEA. 

The Hatch Act Modernization Act of 2012 broadens the scope of permissible political activities for 

some Federal, state and local employees. Under the new law, Federal employees who live in the 

District of Columbia may run for local political office, and take an active role in political 

management and political campaigns to the same degree that residents of Maryland and Virginia 

who live in the immediate vicinity of the District of Columbia may engage in those activities. The 

amendments also expand the range of penalties that may apply to violations of the Act by Federal 

employees. Under certain conditions, these new penalty provisions for Federal employees apply

retroactively to any violation that occurred before the effective date. It is unclear at this time how 

changes in the Hatch Act may affect MSPB’s work or workload. 

Changes in law, appeal rights, and appellate jurisdiction also increase the importance of MSPB’s 

statutory responsibility to promote merit and educate employees, supervisors, managers, and leaders 

on the merit systems, MSPs, PPPs, and MSPB appellate procedures, processes, and case law. 

Education on these issues, promoting merit, and sharing important information about appeals 

procedures will improve workforce management over time and should reduce the cost of appeals to 

agencies, appellants, and the Government.

Changes in employee management flexibilities: Changes in management flexibilities could 

involve expanding flexibilities or returning to traditional management authorities. For example, the 

National Defense Authorization Act (NDAA) for FY 2010 (Public Law 111-84) required 

Department of Defense (DoD) to transfer all employees and positions from National Security 

Personnel System (NSPS) back to traditional title 5 authorities by January 1, 2012. In January 2012, 

the Board released its decision in Arrington v. Department of the Navy, in which it found that the 

transfer of the appellant from the NSPS resulted in her being improperly downgraded to GS-13, 
15 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

when prior to her participation in the NSPS she had been a GS-14 employee, and that under the 

facts of the case, this constituted an appealable reduction in grade. This ruling may increase MSPB’s 

workload if other transferees—roughly 226,000—appeal to MSPB making similar allegations.

Management flexibilities may also be directed through administrative actions such as Presidential 

Executive Orders. For example, President Obama issued Executive Order 13562 in December 2010, 

establishing the Pathways Programs. The Pathways Programs creates a set of excepted service 

appointing authorities tailored to ease and encourage recruitment, hiring, development, and 

retention of students and recent graduates. The Pathways Programs formally acknowledges a longstanding interest of Federal agencies and Federal managers—the ability to hire high-quality college 

graduates into professional and administrative occupations. It is unknown what impact the Pathways 

Programs will have on hiring and management or if it will succeed in its goals. More information 

about the Pathways Programs is contained in the Review of OPM Significant Actions section of this 

report. MSPB plans to closely follow the evolution and implementation of these programs.

Changes in Federal management flexibilities also emphasize the need for MSPB to continue its study 

of Federal merit systems and human capital management practices to ensure the flexibilities are 

implemented and operated in accordance with MSPs and are free from PPPs. Flexibilities and other 

changes in human resource management policies issued through OPM regulation make it imperative 

that MSPB strengthen its ability to exercise its statutory authority to review OPM regulations. 

Reviewing OPM regulations can save the Government in direct costs such as those associated with 

transferring employees in and out of more flexible systems that are later terminated, and in indirect 

costs associated with negative employee perceptions of the new system and possible reductions in 

morale. Finally, changes in management flexibilities also increase the importance of MSPB’s role in 

promoting and educating employees and the public about the merit system, MSPs, and PPPs. 

Changes in Government Work: Government work has continued to shift from administrative 

processing to knowledge-based work. Federal human resources management systems, many 

designed in the 1940s and 1950s, do not have the flexibility needed to manage a knowledge-based 

workforce effectively. Various issues, including recruitment and hiring, performance management 

and pay, and training and development need to be addressed to improve and maintain a diverse 

workforce of highly engaged and motivated employees who can perform agency missions and serve 

the public. At the same time, MSPs and fair treatment must be ensured, along with freedom from 

discrimination and from the occurrence of PPPs. Improvements are also needed in the selection and 

training of supervisors and managers who must use the existing management systems to manage a 

modern workforce and achieve results for the public. These changes emphasize the need for a 

strong merit systems studies function and increased focus on promoting and educating employees 

and the public about the merit systems, MSPs, and PPPs.
16 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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17 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Summary of Revisions to MSPB Adjudication Regulations

In FY 2011, Chairman Grundmann’s initiated a top-to-bottom review of MSPB’s adjudicatory 

regulations, the first such review since MSPB originally published regulations in 1979. The 

Chairman’s initiative began with an invitation to all MSPB employees to submit their ideas for 

updating and improving the regulations. A working group composed of employees from all parts of 

the agency began meeting in March 2011 to consider the employees’ recommendations. The Board 

considered their proposals, and the Board-approved proposals were distributed in October 2011 to 

numerous external stakeholders for comment and MSPB staff met with stakeholders in March of 

2012. The internal working group reconvened for a second set of meetings to evaluate stakeholder 

comments and recommend to the Board changes to be included in the notice of proposed 

rulemaking. After revision and approval by the Board, the notice of proposed rulemaking was 

published in the Federal Register on June 7, 2012.

7 Twenty-five individuals and organizations

submitted written comments. The internal working group considered these comments during a third 

set of meetings and made additional recommendations to the Board. After Board approval, the 

notice of final rulemaking was published in the Federal Register on October 12, 2012.

8

 

The revised regulations became effective on November 13, 2012 and are posted on MSPB’s

website.

9 The regulations have been formatted to make them easier to read online. In addition, live 

links to provisions of the United States Code and U.S. Code of Federal Regulations have been added 

to make nearly all of the references accessible. The website also contains a version of the regulations 

optimized for printing.

10 Numerous other documents relating to the regulation review initiative are 

available on the website, including a 3-column table that shows all of the changes made to the 

regulations and the reasons for the changes, as well as all comments received to the notice of 

proposed rulemaking.

11

 

Some of the more significant changes to MSPB’s adjudication regulations include the following:

Elections in Whistleblower Appeals and Related Notice Requirements: Under longstanding 

Board case law, an individual who claimed that an action that is directly appealable to the Board had 

been taken in retaliation for the individual’s whistleblowing disclosures, and who sought corrective 

action from the Special Counsel before filing an appeal with the Board, retained all the rights 

associated with an otherwise appealable action in the Board appeal. In an adverse action, for 

example, the agency must prove its charges, nexus, and the reasonableness of the penalty by a 

preponderance of the evidence, and the appellant is free to assert any affirmative defense he or she 

might have in addition to retaliation for whistleblowing, including harmful procedural error and 

discrimination under Title VII or the Rehabilitation Act. This can be contrasted to the much more 

limited rights in an individual right of action (IRA) appeal, where the only issue before the Board is 

whether the agency took one or more covered personnel actions against the appellant in retaliation 

for making protected whistleblowing disclosures. The Board’s case law failed to consider an 

amendment to 5 U.S.C. § 7121 in 1994 which added a paragraph (g) that provides that an individual 

who is subjected to retaliation for protected whistleblowing “may elect not more than one” of 3 

remedies: (A) an appeal to the Board under 5 U.S.C. § 7701; (B) a negotiated grievance under 

 

7 77 Fed. Reg. 33663.

8 77 Fed. Reg. 62349.

9 http://www.mspb.gov/appeals/appeals.htm.

10 http://www.mspb.gov/appeals/appealsprintregs.htm.

11 http://www.mspb.gov/regulatoryreview/index.htm.
18 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

§ 7121(d); or (C) corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a 

complaint filed with OSC (§ 1214), which can be followed by an IRA appeal filed with the Board 

(§ 1221). The Board’s revision to 5 C.F.R. § 1209.2 overturns previous case law and implements the 

election requirements of section 7121(g). Section 1201.21 was revised to require agencies to give 

notice to employees who have been subjected to an appealable action of their options in this regard. 

Section 1201.21 was also revised to require agencies to give employees notice of their similar options 

when they make a claim of unlawful discrimination in connection with an otherwise appealable 

action.

Case Suspensions and Dismissals Without Prejudice: Section 1201.28 was revised to allow for 

two suspension periods of up to 30 days each, instead of the current single suspension period, and 

to eliminate restrictions on when a request must be filed. Section 1201.29 was added to describe and 

codify the circumstances in which an appeal may be dismissed without prejudice and the procedures 

that govern such cases following dismissal.

Discovery: The initial disclosure requirement of section 1201.73, which required certain disclosures 

by both parties at the start of a Board proceeding without a discovery request, was eliminated. The 

Board determined this requirement was unnecessary and led to unproductive motion practice. 

Unlike rules governing proceedings in Federal courts, on which the initial disclosure requirement 

was based, an existing MSPB regulation (1201.25) requires agencies to produce all documents 

contained in their record of the action appealed.

Petitions for Review: Revised section 1201.114 institutes length limitations for pleadings to the 

full Board on review of initial decisions. It also provides for a reply to the response to a petition for 

review. Such pleadings are typically allowed by appellate courts and administrative tribunals, subject 

to the limitation that they be limited to the factual and legal issues raised by the other party. Section 

1201.114 clarifies that no pleadings other than the ones specifically defined in the regulation will be 

allowed without seeking and receiving leave of the Clerk of the Board. Section 1201.115 was 

substantially rewritten so as to conform the regulation to the broader criteria by which the Board has 

actually reviewed such petitions, including situations where the Board has denied a petition but 

“reopened” the appeal “on its own motion” to address a petitioner’s arguments or vacate, modify, or 

reverse an initial decision. The revised regulation is intended to grant a petition or cross petition for 

review whenever the petitioner shows that: (1) the case was incorrectly decided based on the 

existing record; (2) new and material evidence indicates that the outcome should be different than in 

the initial decision; or (3) the petitioner did not get a full and fair adjudication process. 

Reopening Final Board Decisions: Section 1201.118 was revised to clarify that “reopening” only 

applies to and is reserved for instances in which the Board has already issued a final order or the 

initial decision has become the Board’s final decision by operation of law.

Review of Arbitration Decisions: New section 1201.155 revises previous practice in two 

significant ways. First, the regulation now provides that, when the negotiated grievance procedure 

permits allegations of discrimination, the Board will review only those claims of discrimination that 

were raised in the negotiated grievance procedure. Second, the regulation provides that, when the 

Board determines that the existing record is insufficient to make findings of fact and conclusions of 

law on discrimination claims, it may develop the record by ordering the parties to submit additional 

evidence or by forwarding the request for review to a judge to conduct a hearing. The Board 

determined that remand to the arbitrator would not be practical or feasible in such cases.
19 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Petitions for Enforcement: The revised regulation changes the nature of an administrative judge’s 

decision in a compliance proceeding from a “recommendation” to a regular initial decision which 

becomes the Board’s final decision if a petition for review is not filed or is denied. The goal is to 

ensure, to the extent feasible, that all relevant evidence is produced during the regional office 

proceeding, and that the initial decision actually resolves all contested issues. To the extent that an 

agency found to be in noncompliance decides to take the compliance actions identified in the initial 

decision, the proposed regulation increases the period for providing evidence of compliance from 15 

days to 30 days. To the extent that this party believes that the initial decision erroneously found 

noncompliance, it may petition the Board to reverse or modify that finding. New paragraph (d) 

codifies existing case law regarding the different burdens of proof that apply in enforcement actions 

depending on whether the Board is adjudicating a petition to enforce relief ordered by the Board 

(typically status quo ante relief when the Board has not sustained an agency action), or a petition to 

enforce a settlement agreement that a party is alleging that the other party breached.

One proposed revision to the regulations (section 1201.56), setting forth rules governing an 

appellant’s burden to establish jurisdiction over an appeal before MSPB, was withdrawn in the 

notice of final rulemaking. A revision is necessary to resolve a conflict between the current 

regulation, which provides without exception that appellants have the burden of proving jurisdiction 

by preponderant evidence, and Board case law that provides for establishing some jurisdictional 

elements by making nonfrivolous allegations. Concerns about the correctness of the proposed 

solution to this conflict were raised, both by external commenters and within MSPB. The proposed 

requirement that an appellant must establish by preponderant evidence that he or she was subjected 

to an appealable action and that he or she is a person entitled to appeal such an action does not 

appear to be controversial, but there is concern about other jurisdictional elements, particularly 

elements that are also merits issues. Given the importance of setting forth a principled framework 

for determining whether a particular matter is jurisdictional, and the appropriate burden for 

establishing that matter, the Board decided to withdraw the proposed regulation and to reexamine 

this issue in 2013. 
20 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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21 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significant Board Decisions and Court Opinions Issued in FY 2012

MSPB issued a number of noteworthy decisions in FY 2012, several of which are summarized 

below. As a service to our stakeholders, we have also provided brief summaries of selected 

significant opinions issued by the U.S. Court of Appeals for the Federal Circuit and the U.S.

Supreme Court. This section also includes Significant Board decisions and Court opinions issued in 

early FY 2013.

Significant Board Decisions Fiscal Year 2012 

Jurisdiction

Arrington v. Department of the Navy, 2012 MSPB 6, 117 M.S.P.R. 301: This was the lead case among 

several involving conversions to and from the now-defunct National Security Personnel System 

(NSPS). The appellant was converted from a GS-14 position into a series of pay-banded positions 

within NSPS. Following the abolishment of the NSPS in October 2009, she was converted to a GS13 position with no loss in pay. She filed an appeal, alleging that she was demoted from the GS-14 

level to the GS-13 level. The judge dismissed her appeal for lack of jurisdiction, finding that the 

appellant did not suffer a reduction in grade or pay, and that the Board lacked authority to review 

the decision to classify her position as a GS-13. The Board reversed, finding that the appellant had 

suffered an appealable reduction in grade. In reaching that conclusion, the Board noted that the 

appellant was not reduced in grade while serving within NSPS and that the appellant’s conversion 

from her NSPS position to a GS-13 position did not, standing alone, constitute a reduction in grade, 

because neither chapter 75 nor OPM’s implementing regulations indicates how a reduction in grade, 

i.e., “a level of classification under a personnel system,” is to be determined where there is 

movement with no reduction in pay between different classification systems. However, the Board 

found that the crucial fact in this case was that the appellant initially occupied a position at one level 

of classification within the General Schedule, GS-14, and was later placed involuntarily at a lower 

level, GS-13, within the same classification system. That sequence of events, the Board found, 

constituted an appealable reduction in grade from GS-14 to GS-13, even though the action was not 

recorded on any Standard Form 50. Because the agency did not provide the appellant an 

opportunity to make a response in connection with the reduction in grade, the Board reversed the 

action on due process grounds and remanded the case for adjudication of the appellant’s 

discrimination claim. 

Burton v. Department of the Air Force, 2012 MSPB 73, 118 M.S.P.R. 210: To establish Board 

jurisdiction over a probationary termination appeal based on a claim of marital status discrimination 

under 5 C.F.R. § 315.908, an appellant must meet the two-part test set forth in Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006), an en banc decision in which the Federal 

Circuit abrogated its earlier decision in Stokes v. Federal Aviation Administration, 761 F.2d 682 (Fed. Cir. 

1985). An appellant must first make a nonfrivolous allegation of jurisdiction, which entitles her to a 

hearing, where she must prove the basis for jurisdiction, i.e., marital status discrimination, by a 

preponderance of the evidence. If she fails to do so, the Board lacks jurisdiction over the appeal.

Compliance

Stasiuk v. Department of the Army, 2012 MSPB 48, 118 M.S.P.R. 1: An agency does not necessarily 

satisfy its obligation to implement a settlement term regarding reinstatement by technically and 
22 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

facially reinstating the employee to the position in question. Every settlement agreement contains an 

implicit requirement that the parties fulfill their respective contractual obligations in good faith. 

Even if an agreement does not specifically prohibit retaliation or harassment, an agency’s postsettlement harassment and retaliation against an appellant may constitute bad faith in implementing 

a reinstatement term and thereby establish agency noncompliance with the settlement agreement.

Attorney Fees

Guy v. Department of the Army, 2012 MSPB 54, 118 M.S.P.R. 45: As the prevailing party in an 

individual right of action (IRA) appeal, the appellant was entitled to attorney fees for time spent in 

connection with the preceding complaint before the Office of Special Counsel (OSC) because 

exhaustion of administrative remedies before OSC is a jurisdictional prerequisite for filing an IRA 

appeal and that work contributed significantly to the appellant’s success before the Board. If a party 

has achieved only “partial or limited success,” the tribunal awarding fees may make an equitable 

adjustment as to what reduction is appropriate by identifying specific hours that should be 

eliminated or, in the alternative, reducing the overall award by a percentage to account for the 

limited degree of success. The former method is preferred where it is practicable to segregate the 

hours devoted to related but unsuccessful claims.

Due Process/Harmful Procedural Error—Security Clearances

McGriff v. Department of the Navy, 2012 MSPB 62, 118 M.S.P.R. 89; Buelna v. Department of Homeland 

Security, 2012 MSPB 63, 118 M.S.P.R. 115; Gargiulo v. Department of Homeland Security, 2012 MSPB 64, 

118 M.S.P.R. 137; Gaitan v. Department of Homeland Security, 2012 MSPB 71, 118 M.S.P.R. 180: At 

issue in these cases was whether the agencies violated the appellants’ constitutional right to due 

process when the agencies indefinitely suspended them based upon the suspension of their access to 

classified information. The Board held that when a suspension is based on restriction of the 

employee’s security access, the agency is required to provide the employee a meaningful opportunity 

to respond to the reasons for the suspension by ensuring that, either in the advance notice of that 

action or in the earlier access determination, the employee has been notified of the cause that led to 

the access determination. To determine whether an agency has violated an employee’s constitutional 

right to due process in indefinitely suspending the employee pending a security clearance 

determination, the Board applies the balancing test set forth in Gilbert v. Homar, 520 U.S. 924 (1997), 

weighing the following three factors: (1) the private interest affected by the official action; (2) the 

risk of erroneous deprivation of the interest through the procedures used, and the probable value, if 

any, of additional or substitute procedural safeguards; and (3) the government’s interest. Due 

process requires that the appellant receive a meaningful opportunity to respond to someone with 

authority to change the outcome of the security clearance determination in either the security 

clearance proceeding or the adverse action proceeding. In Buelna, the Board held that these 

principles also apply in cases involving Transportation Security Administration employees.

Ingram v. Department of Defense, 2012 MSPB 66, 118 M.S.P.R. 149: At issue in this case was whether 

the agency denied the appellant due process in effecting her demotion based upon the loss of her 

eligibility for access to classified information and occupancy of a sensitive position. The agency’s 

notice of proposed demotion did not state the reasons for the loss of eligibility; however, during a 

prior eligibility proceeding the agency informed the appellant of the reasons it was examining 

whether to end her eligibility and afforded the appellant the opportunity to respond to those reasons 

and to appeal its decision. The Board found that, because the appellant received the required notice 

of the specific charges against her in the eligibility proceeding, and the eligibility determination 
23 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

formed the basis of her demotion, the agency did not deny the appellant minimum due process in 

effecting her demotion.

Doe v. Department of Justice, 2012 MSPB 95, 118 M.S.P.R. 434: Because individuals with a SpecialSensitive Level 4 designation have ready access to a security clearance should the need to secure one 

on short notice become necessary, the requirement that an employee maintain eligibility to hold a 

Special-Sensitive Level 4 position as a condition of employment is functionally equivalent to a 

security clearance requirement. Consequently, the restrictions on Board review of security clearance 

determinations imposed by the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 

518 (1988) apply in an appeal of an adverse action based on the withdrawal of eligibility to hold a 

Special-Sensitive Level 4 position. In Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008), 

the court held that Egan does not preclude the Board from reviewing whether the agency complied 

with its own regulations and procedures in revoking a security clearance. Under the agency’s rules, 

the appellant was entitled to review by the agency’s Access Review Committee of the decision to 

withdraw his eligibility for access to classified information. In Romero, the court directed the Board to 

review whether the agency’s failure to comply with its own regulations and procedures in revoking a 

security clearance constituted harmful error. Here, however, the Board does not have any record 

upon which to conduct the required review because the agency failed to afford the appellant any 

access to its internal process. Accordingly, the Board remanded the appeal to the agency to apply its 

internal procedures for reviewing a decision to withdraw an employee’s eligibility for access to 

classified information.

Due Process/Harmful Procedural Error—Ex Parte Information

Wilson v. Department of Homeland Security, 2012 MSPB 56, 118 M.S.P.R. 62: In this case, the agency’s 

deciding official concluded that the appellant had committed misconduct that was not identified in 

either the agency’s notice of proposed removal or the decision notice, and he considered this 

misconduct as an aggravating factor weighing in favor of removal. Pursuant to the Federal Circuit’s 

decision in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), if an ex parte 

communication with a deciding official introduces “new and material information” to the deciding 

official such that the communication “is so substantial and so likely to cause prejudice that no 

employee can fairly be required to be subjected to a deprivation of property under such 

circumstances,” then a due process violation will be found, the adverse action must be reversed, and 

the individual is entitled to a new constitutionally correct procedure. Even if a due process violation 

has not occurred, the Board will determine whether the agency has committed harmful error within 

the meaning of 5 U.S.C. § 7701(c)(2)(A). This analysis applies not only to whether a charge of 

misconduct can be sustained but also to whether the ex parte communication affected the selection 

of the penalty to be imposed. The Board vacated the initial decision affirming the appellant’s 

removal and remanded the case for further adjudication, including a determination as to whether the 

agency deprived the appellant of minimum due process of law.

Howard v. Department of the Air Force, 2012 MSPB 61, 118 M.S.P.R. 106: This case was before the 

Board on remand from the Federal Circuit for further proceedings in light of Ward v U.S. Postal 

Service, 634 F.3d 1274 (Fed. Cir. 2011). The deciding official had considered the appellant’s allegedly 

poor performance as an aggravating factor weighing in favor of removal, even though the agency’s 

notice of proposed removal did not mention the appellant’s poor performance as an aggravating 

factor. On remand, the Board applied the analysis set forth in Ward, 634 F.3d at 1279-80, for 

determining whether a deciding official’s consideration of ex parte information constitutes a due 

process violation. The Board found that the ex parte information at issue was not cumulative 
24 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

because it concerned information regarding alleged performance deficiencies of which the appellant 

was not given notice and an opportunity to respond in the removal action. The Board further found 

that, in a situation like this, where the deciding official has admitted that the ex parte information 

influenced his penalty determination, the information in question is clearly material. The Board 

found that the deciding official’s consideration of this aggravating factor was “so likely to cause 

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

such circumstances.” Therefore, the Board found, the agency violated the appellant's due process 

rights. Accordingly, it ordered the agency to cancel the appellant's removal and restore him to his 

position.

Jenkins v. Environmental Protection Agency, 2012 MSPB 70, 118 M.S.P.R. 161: In determining the 

appropriate penalty, the agency’s deciding official relied on guidance in the table of penalties relating 

to a charge that was not referenced in the notice of proposed removal. Applying the analysis set 

forth in Ward, 634 F.3d at 1279-80, for determining whether a deciding official’s consideration of ex 

parte information constitutes a denial of due process, the Board found that the agency’s reliance on 

the recommended penalty for a charge other than those set forth in the notice of proposed removal 

cannot fairly be deemed cumulative or immaterial to the deciding official’s decision. Therefore, the 

agency violated the appellant’s due process rights by denying her notice of the specific information 

considered and denying her an opportunity to respond. Accordingly, the Board reversed the 

appellant’s removal.

Whistleblower Protection

Tullis v. Department of the Navy, 2012 MSPB 3, 117 M.S.P.R.236: The appellant, a Financial 

Management Analyst, filed an Individual Right of Action (IRA) appeal alleging that the agency 

changed his job duties and working conditions in retaliation for questioning the travel practices of 

his command as being in violation of the agency’s travel regulations, and for cooperating with an 

Inspector General (IG) investigation regarding his command’s travel program by responding to the 

IG’s questions. The administrative judge dismissed the appeal for lack of jurisdiction, finding that 

the appellant’s disclosures to management were not protected because they were made to the alleged 

wrongdoers, and that the appellant’s statements to the IG were not protected because he did not 

make the statements on his own initiative and his responses to the IG’s inquiries were part of his 

normal job duties. On petition for review, the Board found that the appellant made nonfrivolous 

allegations of protected disclosures to the IG. The Board first noted that the Whistleblower 

Protection Act (WPA) refers to “any disclosure,” without making a distinction based on who 

initiated the conversation that led to the disclosures. Thus, the fact that the appellant did not come 

forward of his own initiative to the IG is not dispositive, or even relevant, in determining whether 

his disclosures were protected. The Board further found that the disclosures to the IG were not part 

of the appellant’s normal job duties because, although the appellant was obligated to cooperate with 

the IG, he did not occupy a position with any particular investigatory responsibilities, and the fact 

that the information he disclosed was closely related to his day-to-day responsibilities did not 

remove the disclosure of that information from protection. 

Cassidy v. Department of Justice, 2012 MSPB 60, 118 M.S.P.R. 74: The Board found that the appellant 

established jurisdiction over his individual right of action appeal and remanded the appeal for 

adjudication on the merits. The appellant, a Deputy Chief Counsel with the Immigration of Customs 

Enforcement, alleged that his nonselection for two Immigration Judge positions with the agency was 

in retaliation for his complaints to the Assistant Chief Immigration Judge concerning the conduct of 

another immigration judge. In reversing the administrative judge’s finding that the appellant failed to 
25 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

make a nonfrivolous allegation that he made a protected disclosure, the Board found that one of the 

appellant’s five alleged disclosures – that the immigration judge’s conduct and unnecessary delays 

violated the due process rights of detained aliens scheduled for their initial appearances before him–

was protected in that the appellant reasonably believed that he was disclosing a violation of law, rule, 

or regulation. The Board also found that the appellant made a nonfrivolous allegation that his 

disclosures were a contributing factor in his nonselection for the two positions because there was 

evidence that, although the judge to whom the appellant made the disclosures did not make the 

decision regarding the appellant's nonselection, he influenced the panelists who made the decision 

regarding both positions.

Farrington v. Department of Transportation, 2012 MSPB 85, 118 M.S.P.R. 331: At issue in this individual 

right of action appeal was whether the appellant’s disclosures to her fourth-level supervisor 

concerning alleged inadequate funding for surveillance of an airline’s flight attendant training 

programs and deficiencies in that training were protected under the WPA. The administrative judge

determined that the disclosures were not protected under the Federal Circuit’s decision in Huffman v. 

Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), finding that the disclosures were made 

as part of her normal duties through normal channels. The Board reversed this ruling, stating that 

the term “normal channels” should be given its commonly understood meaning, i.e., the employee 

conveyed duty-related information to a recipient, who in the course of his or her duties, customarily 

receives the same type of information from the employee and from other employees at the same or 

similar level in the organization as the employee. Here, the appellant did not normally report safety 

concerns to the fourth-level supervisor in question; in fact, she had not previously communicated 

with this official at all. The Board concluded that the disclosure was made outside of normal 

channels and was therefore protected.

 

Discrimination

Southerland v. Department of Defense, 2011 MSPB 92, 117 M.S.P.R. 56: The Board reopened and 

vacated its August 25, 2011 decision in this case and substituted a new decision in order to clarify 

the proper analysis of the appellant’s disability discrimination claim in light of the recently revised 

EEOC regulations, issued May 24, 2011, implementing the ADA Amendments Act of 2008 

(ADAAA). In particular, the Board noted that the administrative judge did not have the benefit of 

the new regulations, which provide that, where an individual is not claiming failure to accommodate, 

it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, and the 

evaluation of coverage can be made solely under the “regarded as” prong of the definition of 

disability. See 29 C.F.R. § 1630.2(g)(3). Because the appellant in this case had not asserted that the 

agency failed to accommodate him, but instead asserted that the agency removed him on the basis of 

his impairment, the Board found that the administrative judge’s analysis should have focused on 

whether the appellant meets the “regarded as” definition set forth at 29 C.F.R. § 1630.2(g)(1)(iii) and 

further explained at § 1630.2(l).

The Board also held that a mixed motive analysis is not applicable under the ADAAA. Nothing in 

the plain language of the statute resolves the question and the Board found that despite the change 

of language from “[n]o covered entity shall discriminate against a qualified individual with a disability 

because of the disability of such individual” to “[n]o covered entity shall discriminate against a 

qualified individual on the basis of disability,” 42 U.S.C. § 12112(a), the terms mean the same thing 

and do not require a mixed motive analysis. Further, nothing in the legislative history indicates a 

Congressional intent to authorize a mixed-motive approach. The Board found persuasive the 

rationale of the court in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), which 
26 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

reached that conclusion. Thus, a “but for” test applies and the burden of persuasion does not shift 

to the agency to show that it would have taken the action regardless of disability, even if the 

appellant produces some evidence that disability was one motivating factor in the adverse 

employment action.

Fitness for Duty Examination

Doe v. Pension Benefit Guaranty Corporation, 2012 MSPB 42, 117 M.S.P.R. 579: The agency directed the 

appellant to undergo a psychiatric fitness for duty (FFD) examination based on “unusual and 

inappropriate behavior” the appellant had exhibited in recent months. Based on the results of the 

FFD examination, the agency placed the appellant on enforced leave status. That suspension ended 

when the appellant submitted a medical report from her doctor indicating that she was able to work 

without restriction. However, the agency found that the report did not contain sufficient 

information to determine whether she was able to work and directed her to undergo a follow-up 

FFD examination, which ultimately resulted in a second suspension action. The appellant filed 

appeals of both suspensions. In both cases, the administrative judge reversed the action on the 

grounds that OPM’s regulations did not authorize the agency to order a FFD examination, but 

found that that the appellant had failed to prove her claim of disability discrimination. On petition 

for review, the Board joined the appeals and granted the appellant’s request to proceed under a 

pseudonym, on the grounds that the sensitive medical information in the record stemmed from the 

improper FFD examinations. The Board found that the agency lacked authority to order an FFD 

examination because, under 5 C.F.R. § 339.301, an agency may order a medical examination only in 

three limited circumstances, none of which applies in this case. The Board further found that the 

EEOC regulations implementing the ADA did not provide the agency independent authority to 

order an examination prohibited under OPM regulations, and the collective bargaining agreement 

did not provide the agency authority that would be lacking under part 339. With respect to the 

appellant’s claims of disability discrimination, the Board found that remand was necessary because 

the administrative judge failed to determine whether the appellant was “regarded as” disabled under 

the ADAAA and the EEOC regulations implementing the ADAAA. The Board also rejected the 

appellant’s argument that the agency’s actions constituted direct evidence of discrimination.

 

Adverse Action Charges

Bair v. Department of Defense, 2012 MSPB 17, 117 M.S.P.R. 374: The appellant sustained a workrelated injury in January 2009 and did not return to work. In May 2010, the agency removed her on a

charge of excessive absences. On appeal, the appellant contended that the agency could not 

discipline a disabled employee who was receiving workers’ compensation benefits. The 

administrative judge sustained the removal, and the Board affirmed the initial decision. In doing so, 

the Board reaffirmed the principle that an agency need not indefinitely carry an employee receiving 

workers’ compensation benefits on its employment rolls. The Board recognized that, under 5 U.S.C. 

§ 8151(b)(1), a compensably injured employee who fully recovers within one year of the date of 

commencement of compensation has an unconditional right to return to his former or an equivalent 

position, and that removing such an individual based on leave use during that statutory one-year 

period would be inappropriate. However, the Board further found that Congress did not provide job 

security to compensably injured employees who, like the appellant, do not fully recover within the 

statutory one-year time frame.

 
27 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Performance Based Actions

Muff v. Department of Commerce, 2012 MSPB 5, 117 M.S.P.R. 291: In October 2009, the appellant was 

placed on a performance improvement plan (PIP) based on the agency’s determination that her 

performance in one critical element was unacceptable. After she successfully completed the PIP, the 

agency removed her for unacceptable performance on the same critical element in May 2010. On 

appeal, the administrative judge concluded that the appellant’s performance for only one month was 

an insufficient basis on which to remove her because the agency failed to consider her performance 

for any other month after her successful completion of the PIP. On review, the Board considered 

the question of whether an agency may take an action within 1 year of the advance notice of a PIP 

based on 1 month of unacceptable performance without consideration of other months of 

successful performance during and after the PIP. The Board answered in the negative, noting that, 

while the appellant’s performance was measured monthly, it was evaluated on an annual basis. The 

Board distinguished the case from another in which the employee’s performance fell below the 

acceptable level only 2 months after completion of the PIP and she continued to fail for 2 successive 

months. In this case, by contrast, the appellant performed successfully during the 4-month PIP and 

for 6 months thereafter, and her performance was unacceptable for only 1 month.

Retirement

Henderson v. Office of Personnel Management, 2012 MSPB 11, 117 M.S.P.R. 313: The Board reversed an 

initial decision that affirmed OPM’s denial of the appellant’s application for disability retirement 

benefits under CSRS. In doing so, the Board overruled Bynum v. Office of Personnel Management, 

89 M.S.P.R. 1 (2001), and its progeny insofar as these decisions indicated that there is a “general 

rule” that medical evidence must show that the appellant’s medical condition affects specific job 

duties and requirements, and that, under an “exception” to the rule, the Board may link the medical 

evidence to the job duties where such evidence unambiguously and without contradiction indicates 

that the appellant cannot perform the duties or meet the requirements of her position. The Board 

noted that, under 5 U.S.C. § 8337(a), an applicant for disability retirement under CSRS must be 

“unable, because of disease or injury, to render useful and efficient service in the employee’s 

position.” The regulation at 5 C.F.R. § 831.1203(a)(2) sets out two ways to satisfy the statutory 

requirement: (1) by showing that the medical condition caused a deficiency in performance, 

attendance, or conduct; or (2) by showing that the medical condition is incompatible with useful and 

efficient service or retention in the position. Regardless of the particular method of establishing an 

inability to render useful and efficient service, the burden of proof is preponderant evidence, i.e., 

more likely true than not. Thus, to require medical evidence that is unambiguous and without 

contradiction imposes a much higher burden of proof than is authorized by law or regulation. The 

Board will consider all pertinent evidence in determining an appellant’s entitlement to disability 

retirement, and nothing in the law mandates that a single provider tie all of this evidence together. 

The ultimate question, based on all relevant evidence, is whether the employee’s medical 

impairments preclude her from rendering useful and efficient service in her position, and this 

question must be answered in the affirmative if the totality of the evidence makes that conclusion 

more likely to be true than not true.

Restoration

Latham v. U.S. Postal Service, 2012 MSPB 20, 117 M.S.P.R. 400: The appellants in this consolidated 

case had been assigned modified limited duty assignments following their partial recovery from 

work-related injuries. Pursuant to its National Reassessment Process, the agency discontinued the 
28 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

appellants’ limited duty assignments, informing them that there were no operationally necessary 

tasks available for them within their medical restrictions. The appellants filed appeals under 5 C.F.R. 

§ 353.304(c), alleging that the agency had acted arbitrarily and capriciously in denying them 

restoration. The Board observed that, while this regulation does not require an agency to assign a 

partially recovered employee limited duties that do not comprise the essential functions of a 

complete and separate position, the agency’s Employee and Labor Relations Manual (ELM) may 

require such assignments. The issue to be decided, therefore, was whether denial of restoration 

would be “arbitrary and capricious” within the meaning of § 353.304(c) based solely on a violation 

of an agency’s internal rules. After receiving briefs on the issue from the parties and several amici, 

the Board granted the agency’s request for oral argument. In addition, the Board requested and 

obtained an advisory opinion from OPM. Following oral argument, the Board issued a 2-1 decision 

finding that the Board’s jurisdiction under 5 C.F.R. § 353.304(c) may encompass a claim that an 

agency’s violation of its internal rules resulted in an arbitrary and capricious denial of restoration. 

The Board first ruled that, under the Federal Circuit’s recent decision in Bledsoe v. Merit Systems 

Protection Board, 659 F.3d 1097 (Fed. Cir. 2011), the appellants must prove the jurisdictional elements, 

including the “arbitrary and capricious” standard, by preponderant evidence, and overruled Board 

precedent to the contrary. With regard to the “arbitrary and capricious” standard, the Board noted 

that OPM’s regulation at § 353.301(d) provides that agencies must “make every effort” to restore 

employees who have partially recovered from a compensable injury and must, “at a minimum,” treat 

the employees substantially the same as individuals under the Rehabilitation Act. In its advisory 

opinion, OPM stated that, if the agency established a rule that provided partially recovered 

employees with greater restoration rights than the “minimum” required by regulation, then it was 

required to meticulously follow that rule, and that to do otherwise would be arbitrary and capricious 

within the meaning of § 353.304(c). The Board found that OPM’s interpretation of its own 

regulation is controlling, as it is consistent with the plain language of the regulation and not clearly 

erroneous. In her dissenting opinion, then-Member Rose expressed her view that, contrary to 

OPM’s advisory opinion, OPM’s regulations could not reasonably be interpreted as granting the 

Board jurisdiction to enforce the substantive restoration entitlements conferred by the ELM or 

other internal agency directives. 

Settlement

Cooper v. Department of Veterans Affairs, 2012 MSPB 23, 117 M.S.P.R. 611: At issue in this case was 

the validity of a last chance settlement agreement in which the agency agreed to hold a removal 

action in abeyance for 24 months, subject to the appellant’s agreement to accept a 60-day suspension 

for the sustained charges and to be subject to random testing for alcohol. The agreement further 

provided that, if the testing revealed the appellant to be under the influence of alcohol, the removal 

action would be effected based on the sustained charges and the appellant would waive his Board 

appeal rights. The appellant argued that the settlement agreement was invalid because it allowed for 

both a suspension and a removal based on the same misconduct. The Board found that a last-chance 

agreement that waives both the right of appeal and the right not to be disciplined twice for the same 

offense may be enforced if it meets other requirements for a valid settlement agreement. In such a 

case, the appellant may conclude that the certain benefit of escaping removal and accepting a lesser 

penalty exceeds the speculative benefit that he might prevail in the removal appeal, and the 

incorporation of some discipline into the agreement makes it more likely that the agency will 

consider entering into the agreement because the employee will not escape all punishment for the 

charged offense.
29 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Zumwalt v. Department of Veterans Affairs, 2012 MSPB 115 (2012): The appellant had been suspended 

for 3 days for improperly accessing a state database, but the parties settled his IRA appeal with a 

clean record agreement. An agent in the agency’s OIG later investigated the appellant’s use of the 

database and informed state officials about it. The Board's majority found a violation and remanded 

the appeal to allow the appellant to choose whether to enforce or rescind the settlement. The 

majority held that a clean record provision must be construed to give the appellant the benefit of his 

bargain, and here, the agent’s disclosure breached the agreement, regardless of the fact that the agent 

was not in the same chain of command as the appellant and the officials who signed the agreement. 

The limited exception, discussed in Fomby-Denson v. Department of the Army, 247 F.3d 1366 (Fed. Cir. 

2001), is where public policy requires the disclosure of information concerning criminal activity, but 

the majority found that does not apply here because although the appellant could have been 

criminally prosecuted, the agent was not making a criminal referral when he disclosed the 

information. In dissent, Member Robbins argued that the agency was not in breach because under 

the Inspector General Act of 1978, an IG is not subject to supervision by anyone but the agency 

head or the officer next in rank below the agency head and cannot be prohibited from initiating any 

investigation. Given an IG’s independence, he would have found that IG personnel cannot be 

bound by an agreement between an employee and non-IG personnel.

Reduction in Pay

Smith v. Department of the Army, 2012 MSPB 24, 117 M.S.P.R. 628: The Board affirmed the initial 

decision that reversed the agency’s decision to terminate the appellant’s Law Enforcement 

Availability Pay (LEAP). Title 5 U.S.C. § 5545(a) requires that each criminal investigator receiving 

availability pay and the appropriate supervisory officer make an annual certification that the 

investigator has met, and is expected to meet, the requirement that the annual average of 

unscheduled duty hours worked is in excess of each regular work day by at least 2 hours per day. 

The statute is ambiguous as to when certification can be denied, but OPM has promulgated a 

regulation, 5 C.F.R. § 550.184(d), which identifies only two circumstances, neither present in this 

case, in which an agency may deny certification: (1) when an investigator has failed to perform 

unscheduled duty as assigned or reported; or (2) when he is unable to perform scheduled duty for an 

extended period due to physical or health reasons. The Board deferred to OPM’s regulation, finding 

that OPM’s regulation was not only a reasonable interpretation of the statute, but consistent with 

the statute’s legislative history.

Hatch Act

Special Counsel v. Greiner, 2011 MSPB 98, 117 M.S.P.R. 117: Respondent Greiner ran successfully as a 

Republican candidate for Utah State Senate while serving as Chief of Police for the Ogden City 

Police Department (OPD). During the period of his candidacy, the OPD received funding via 

several grants from the Department of Justice. The Special Counsel charged Greiner with violating 

the Hatch Act, 5 U.S.C. § 1502, which prohibits a state or local employee whose principal 

employment is in connection with an activity financed in whole or in part by Federal loans or grants 

from running as a candidate for partisan political office. The administrative law judge found that 

Greiner had violated the Act and that the violation warranted his removal. In a 2-1 decision, the 

Board affirmed the initial decision, finding that Greiner’s connection with Federal funding was not 

de minimis, and that he was therefore covered under § 1502. The majority further found that the 

violation warranted his removal. In her dissent, Vice Chairman Wagner argued that Greiner’s 

involvement with the Department of Justice grants was de minimis and that even if he had violated 
30 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

the Hatch Act, removal was unwarranted in light of his employment record and the respondents’ 

good faith efforts to bring him into compliance.

Veterans’ Issues

Willingham v. Department of the Navy, 2012 MSPB 53 (2012): The Board found that the appellant made 

non-frivolous allegations that a Non-Appropriated Fund Instrumentality (NAFI), the Marine Corps 

Community Services at Camp Lejeune, NC, is an “agency” for purposes of VEOA. Although VEOA 

does not define the term “agency” and its legislative history sheds no light on the subject, Congress 

used the word unqualified by the term “executive,” so it is not clear that the 5 U.S.C. § 105 definition 

applies under section 3330a. Further, when VEOA jurisdiction has been excluded, Congress generally 

does so by specific exemption. Remedial statutes must be construed liberally and in light of their 

purpose, but here the Board did not need to decide whether all NAFIs are subject to its VEOA 

jurisdiction. Instead it found that this NAFI operates as a component of the Marine Corps and so 

comes within the purview of VEOA, and that DoD administers DoD-wide “policies, procedures, 

programs, and guidance” for the selection of NAFI employees, so that given the extent to which it is 

integrated into the DoD civilian personnel system, it should be considered covered by VEOA.

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit

Jurisdiction

Roy v. Merit Systems Protection Board, 672 F.3d 1378 (Fed. Cir. 2011) (No. 2011-3107) : The Federal 

Circuit held that, in order to be an employee entitled to appeal to the Board under 5 U.S.C. § 

7511(a)(1)(C)(ii), the individual must have served continuously for at least 2 years in the same or 

similar permanent positions immediately prior to the removal date. The court concluded that Ms. 

Roy did not meet that statutory definition of “employee” because she had served for less than 2

years in a permanent position at the time of her removal. The court rejected Ms. Roy’s argument 

that she could satisfy the current continuous service requirement by tacking two periods of service 

in the same or similar permanent positions even though they were separated by a period of 

temporary appointment. The court therefore affirmed the Board’s dismissal of Ms. Roy’s appeal for 

lack of jurisdiction.

Diggs v. Department of Housing & Urban Development, 670 F.3d 1353 (Fed. Cir. 2011) (No. 2010-3193): 

The Board sustained the appellant’s removal, finding that she failed to prove her affirmative defense 

of retaliation for prior equal employment opportunity (EEO) activity. On appeal, the Federal Circuit 

considered the question of whether the appellant’s allegation of retaliation was covered under the 

Federal sector provision of Title VII, which would render her appeal a mixed case over which the 

court lacks jurisdiction. The court concluded that affirmative defenses of reprisal for prior EEO 

activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. § 7702. 

Accordingly, the court dismissed the appeal for lack of jurisdiction because it presented a mixed case 

which it lacked the authority to review. 

Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011) (No. 2011-3054): In 

affirming the Board’s decision that dismissed the appellant’s restoration appeal for lack of 

jurisdiction, the court followed Garcia v. Department of Homeland Security, 437 F.3d 1322 (2006) (en 

banc), in holding that the Board’s regulation at 5 C.F.R. § 1201.56(a)(2) required the appellant to 

prove jurisdiction by a preponderance of the evidence, independent of whether the facts relevant 

to deciding the merits of the appeal overlap with the facts relevant to deciding jurisdiction. The 
31 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

court further held that, in order to establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant 

must prove the following elements by preponderant evidence: (1) absence due to a compensable 

injury; (2) sufficient recovery from the injury to return to duty on a part time basis or in a less 

physically demanding position; (3) agency denial of a request for restoration; and (4) denial of 

restoration rendered arbitrary and capricious by the agency.

Wilder v. Merit Systems Protection Board, 675 F.3d 1319 (Fed. Cir. 2012) (No. 2011-3105): At issue in 

this case was whether Wilder, whose employment was terminated during his one-year probationary 

period, could combine his prior military service with his civilian service, to meet the definition of 

“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii), i.e., an individual who has completed one year of 

current continuous service under other than a temporary appointment limited to 1 year or less. The 

court held that term “current continuous service” is limited to “Federal civilian employment.” The 

court found that although the statute was ambiguous, OPM had issued a regulation interpreting the 

requirement as being limited to “Federal civilian employment” (5 C.F.R. § 752.402) and OPM's 

interpretation is entitled to Chevron deference.

Berry v. Conyers and Northover/Merit Systems Protection Board, 692 F.3d 1223 (Fed. Cir. 2012) (No. 2011-

3207): The Federal Circuit originally held that Department of the Navy v. Egan, 484 U.S. 518 (1988), 

which prohibits the Board from merits review of agency adverse actions based on the denial, 

revocation, and suspension of a security clearance, also limits Board review of determinations 

involving an employee’s eligibility to occupy a sensitive position, regardless of whether the position 

requires access to classified information. The court reversed the decisions of the Board. The court 

stated that the Board erred by conflating “classified information” with “national security 

information” and stated that Egan’s “core focus” was on the latter. The court did not define 

“national security information,” but by way of example stated that the term is broad enough to 

cover knowledge of “commissary stock levels of a particular unclassified item – sunglasses, for 

example, with shatterproof lenses, or rehydration products – [which] might well hint at deployment 

orders to a particular region for an identifiable unit.” The court opined that “it is naïve to suppose 

that employees without direct access to already classified information cannot affect national 

security.” The court concluded by stating that “[i]n our society, it has been accepted that genuine 

and legitimate doubt is to be resolved in favor of national security.” In a dissenting opinion, Judge 

Dyk stated that the majority’s decision effectively nullifies provisions of the Civil Service Reform 

Act, is not supported by any executive order authorizing agencies to limit Board review of their 

decisions, and is inconsistent with Egan and its progeny. MSPB and the employees have filed 

petitions for rehearing en banc. On January 24, 2013, the court granted MSPB’s petition for 

rehearing en banc, vacated its previous decision, and ordered further briefing (No. 2011-3207). 

Adams v. Department of Defense, 688 F.3d 1330 (Fed. Cir. 2012) (No. 2011-3124): In this case 

involving a termination based on revocation of the petitioner’s security clearance, the Federal Circuit 

held that while the Board could not hear the merits of the termination, it could review the denial of 

the petitioner’s request for voluntary early retirement. The court affirmed the Board’s ruling as to 

the security clearance procedures and reversed the Board as to its authority to review the denial of 

the petitioner’s retirement request. The Federal Circuit found that, under Department of the Navy v. 

Egan, 484 U.S. 518, 529-31 (1988), the Board’s review of an agency’s denial or revocation of a 

security clearance is limited to determining whether the agency provided minimal due process 

protection. The court noted, however, that the limited appeal of agency security clearance-based 

actions does not remove Federal employees from all other employment rights and benefits. The 

court stated that no statute or policy removes Board review when a retirement relates to revocation 
32 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

of a security clearance. The court remanded for a determination as to whether the petitioner must 

first appeal his claim to OPM.

 

Penalty

Norris v. Securities and Exchange Commission, 675 F.3d 1349 (Fed. Cir. 2012) (No. 2011-3129): The 

Federal Circuit held that the deciding official had not improperly relied on ex parte information 

because the evidence demonstrated that although she was aware of that information at the time of 

her decision, mere knowledge was not enough to create a due process problem. The court further 

stated that the deciding official’s testimony showed that she had not relied on the ex parte 

information in reaching her decision on the charges and the proper penalty. In addition, the court 

held that when new evidence in mitigation of the penalty is presented to the Board (or the 

arbitrator), the evidence must be considered in determining whether the agency’s imposed penalty 

was reasonable.

Whistleblower Protections

Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (No. 2011-3084): In determining 

whether an agency has met its burden of proving by clear and convincing evidence that it would 

have taken the same personnel action in the absence of a protected disclosure, the Board must 

consider all of the pertinent evidence in the record, i.e., not only the evidence that supports the 

conclusion reached, but also evidence that fairly detracts from that conclusion. Under Carr v. Social 

Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the Board must weigh 3 factors in determining 

whether an agency has met its burden via clear and convincing evidence: (1) the strength of the 

agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to 

retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence 

that the agency takes similar actions against employees who are not whistleblowers. Because 

evidence of alleged bias and impropriety pervading the investigation of Whitmore’s alleged 

misconduct was clearly pertinent to the first two Carr factors, the administrative judge erred in 

excluding the testimony of the investigator, Morgan, and his interviewees. The administrative judge 

also erred by excluding the testimony of a whistleblower previously removed from his position and 

investigated by Morgan because that is relevant to the third Carr factor. The court also held that 

when a whistleblower makes highly critical accusations of the agency's conduct, an agency official 

merely being outside that whistleblower’s chain of command, not directly involved in alleged 

retaliatory actions, and not personally named in the whistleblower's disclosures, it is insufficient to 

remove the possibility of a retaliatory motive or retaliatory influence on the whistleblower’s 

treatment. The court found overly narrow the Board’s view that, for employees to be “similarly 

situated for purposes of Carr factor three,” all relevant aspects of the appellant's employment 

situation must be “nearly identical” to the comparative employees. The court held that differences in 

kinds and degrees of conduct between otherwise similarly situated persons within an agency should 

be considered in weighing this factor. The court also held that the agency must produce all 

reasonably pertinent evidence relating to Carr factor three to the extent such evidence exists. The 

absence of any evidence concerning this factor may cause the agency to fail to prove its case overall. 

Timeliness

Rocha v. Merit Systems Protection Board & Department of State, 688 F.3d 1307 (Fed. Cir. 2012) (No. 2011-

3107): Rocha’s claim that he did not receive the initial decision does not constitute good cause for 

his untimely petition for review where the record shows that the decision was sent to the email 
33 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

address he provided to the Board when he filed his appeal. As a registered e-filer, Rocha consented 

to accept all documents issued by the Board in electronic form and he was required by regulation to 

monitor his case online to insure that he received all case-related documents.

Restoration to Duty

Gallo v. Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012) (No. 2011-3094): In this 

restoration case, the Federal Circuit held that the Board erred by interpreting the statutory language 

to require that an employee physically leave the Federal government upon a compensable injury. The 

court reversed the Board’s decision and remanded for further proceedings. The court found that the 

language of 5 U.S.C. § 8151(a) stating that “the entire time during which the employee was receiving 

compensation under [the Federal Employees’ Compensation Act (‘FECA’)] shall be credited” 

indicates that it is not the separation from the Federal government, but rather the entitlement to 

compensation under FECA, that is the deciding factor in determining eligibility under § 8151(a). The 

court concluded that Congress intended § 8151(a) to encompass situations in which an employee 

resumes her former position or equivalent after having been forced to leave it due to a compensable 

injury, but who remained otherwise employed by the Federal government during the interim period 

while receiving workers’ compensation benefits. The court held that Ms. Gallo directly qualified for 

rights and benefits under § 8151(a) because she received compensation under FECA during the 

entire period of her “separation.” The court remanded to the Board for a determination as to Ms. 

Gallo’s rights and benefits based on her length of service. 

Veterans' Rights

Jarrard v. Department of Justice, 669 F.3d. 1320 (Fed. Cir. 2012) (No. 2011-3050): The appellant, a 

preference eligible veteran, applied for attorney positions at the Social Security Administration and 

Department of Justice, and both agencies selected other applicants, at least one of whom was a nonpreference eligible. The Board denied his requests for corrective action under VEOA, rejecting the 

appellant’s argument that 5 U.S.C. § 3320 required the agencies to follow the passover provisions of 

5 U.S.C. § 3318 in excepted service hiring. The court affirmed, finding that OPM is barred by statute 

and regulation from imposing a rating or other examination system on the hiring of attorneys in the 

executive branch, and that the bar against examinations and ratings makes it not administratively 

feasible to apply the passover provisions of section 3318 to attorney hiring. 

Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (No. 2011-3190): Following 

his nonselection for an IT Specialist position, the appellant filed a request for corrective action 

under VEOA, contending that the agency violated his veterans’ preference rights in finding that he 

did not meet the specialized experience requirement for the position. Specifically, he argued that the 

agency failed to comply with 5 C.F.R. § 302.302(d), which provides that, where experience is a factor 

in determining qualification for a position, a preference eligible is to be credited for all valuable 

experience gained “in religious, civic, welfare, service, and organizational activities, regardless of 

whether pay was received therefor.” The administrative judge and the Board declined to consider 

whether the agency complied with § 302.302(d), on the grounds that the Board lacked jurisdiction to 

address the merits of the nonselection. The Federal Circuit vacated and remanded, finding that 

§ 302.302(d) is a regulation that clearly relates to veterans’ preference and that the Board has 

jurisdiction to determine whether the agency properly afforded the appellant the right to compete 

for the position and to determine, in accordance with § 302.302(d), whether he was qualified for the 

position. 
34 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Attorney Fees

Ward v. United States Postal Service, 672 F.3d 1294 (Fed. Cir. March 12, 2012) (No. 2010-3021): In 

this attorney fees matter, the Federal Circuit held that a prevailing party may recover fees under the 

Equal Access to Justice Act (“EAJA”) following a remand from a Federal court to an administrative 

agency if the remand was due to administrative error. The court distinguished remands to 

administrative agencies from remands within the Federal court system. Further, the court clarified 

that remands not rooted in agency error do not result in prevailing party status. Here, however, the 

court held that Mr. Ward qualified as a prevailing party under EAJA because administrative errors 

resulted in his remand to MSPB. The court therefore found that Mr. Ward was entitled to recover 

attorney fees incurred during his Federal Circuit appeal.

Significant Opinions Issued by the U.S. Supreme Court

Constitutional Claims

Elgin v. Department of the Treasury, 132 S.Ct. 2126 (U.S. 2012): The Civil Service Reform Act 

“provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse 

employment action by arguing that a Federal statute is unconstitutional.” Even if the Board did not 

have the authority to consider the constitutionality of a Federal statute, the Court of Appeals for the 

Federal Circuit has such authority and MSPB can develop the necessary factual record for such 

determinations.

Jurisdiction—Mixed Cases

Kloeckner v. Solis, Department of Labor (Dec. 10, 2012) (No. 11-184): At issue in this case was the 

proper avenue of Court review available to an individual who has appealed a “mixed case” to MSPB

and the Board has dismissed the appeal on procedural grounds rather than the merits. A mixed case 

is one in which a Federal agency has taken an action that is directly appealable to the Board and the 

individual alleges that the agency action was based on prohibited discrimination. The Supreme Court 

ruled that Federal district court is the proper venue for review of a mixed case, regardless of whether 

the Board decided the discrimination claim on the merits or on procedural grounds. 
35 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Case Processing Statistics

Summary of Cases Decided by MSPB

Table 1: FY 2012 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices 

 Appeals 5,881

 Addendum Cases1 546

 Stay Requests2 96

TOTAL Cases Decided in RO/FOs 6,523

Cases Decided by Administrative Law Judges (ALJs) – Original 

Jurisdiction3

12

Appellate Jurisdiction:

 Petitions for Review (PFRs) – Appeals 833

 Petitions for Review (PFRs) – Addendum Cases 104

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings4 37

 Court Remands 6

 Compliance Referrals 42

 EEOC Non-concurrence Cases 1

 Arbitration Cases 8

Subtotal – Appellate Jurisdiction 1,031

Original Jurisdiction5 19

Interlocutory Appeals 0

TOTAL Cases Decided by the Board 1,050

TOTAL Decisions (Board, ALJs, RO/FOs) 7,585

1 Includes 104 requests for attorney fees, 140 Board remand cases, 278 petitions for enforcement, 8 Court remand cases, 

11 requests for compensatory damages (discrimination cases only), 2 requests for consequential damages, and 3 requests 

for liquidated damages.

2 Includes 77 stay requests in whistleblower cases and 19 in non-whistleblower cases.

3 Initial Decisions issued by ALJ. Case type breakdown: 6 actions against ALJs, 2 actions against a member of the SES, 

5 Hatch Act cases, and 1 corrective action brought against an agency.

4 Includes 34 cases reopened by the Board on its own motion and 3 cases where OPM requested reconsideration.

5 Final Board decisions. Case type breakdown: 11 OSC stay requests, 2 PFRs in Hatch Act cases, 2 PFRs in actions 

against an ALJ, and 4 requests for regulation review.
36 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Summary of Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and Field Offices, 

by Type of Case

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

Type of Case # # % # % # % # %

Adverse Action by Agency 2798 1401 50.07 1397 49.93 974 67.72 423 30.28

Termination of 

Probationers 498 452 90.76 46 9.24 42 91.30 4 8.70

Reduction in Force 53 28 52.83 25 47.17 10 40.00 15 60.00

Performance 155 46 29.68 109 70.32 81 74.31 28 25.69

Acceptable Level of 

Competence (WIGI) 42 28 66.67 14 33.33 9 64.29 5 35.71

Suitability 57 23 40.35 34 59.65 21 61.76 13 38.24

CSRS Retirement: Legal 330 191 57.88 139 42.12 8 5.76 131 94.24

CSRS Retirement: 

Disability 35 23 65.71 12 34.29 1 8.33 11 91.67

CSRS Retirement: 

Overpayment 40 23 57.50 17 42.50 13 76.47 4 23.53

FERS Retirement: Legal 95 57 60.00 38 40.00 1 2.63 37 97.37

FERS Retirement: 

Disability 268 210 78.36 58 21.64 2 3.45 56 96.55

FERS Retirement: 

Overpayment 123 45 36.59 78 63.41 58 74.36 20 25.64

FERCCA 20 13 65.00 7 35.00 2 28.57 5 71.43

Individual Right of Action 243 170 69.96 73 30.04 33 45.21 40 54.79

USERRA 232 80 34.48 152 65.52 125 82.24 27 17.76

VEOA 197 121 61.42 76 38.58 12 15.78 64 84.21

Other3 695 630 90.65 65 9.35 53 81.54 12 18.46

Total 5881 3541 60.21 2340 39.79 1445 61.75 895 38.25

1

Percent Dismissed and Not Dismissed are of the number Decided.

2 Percent Settled and Adjudicated are of the number Not Dismissed.

3 “Other” appeals include Restoration of Duty (184), Miscellaneous (452) and additional types such as Reemployment 

Priority, Employment Practices, and others.
37 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Figure 1: Type of Appeals Decided in the Regional and Field Offices

Total Number of Appeals: 5,881

Adverse Actions 

(2798) 48%

Terminaton of 

Probationers (498) 

8%

Reduction in Force 

(53) 1%

Performance (155) 

3%

Acceptable Level of 

Competence (42) 

1%

Suitability (57) 1%

CSRS Retirement: 

Legal (330) 6%

CSRS Retirement: 

Disability (35) 1%

CSRS Retirement: 

Overpayment (40) 

1%

FERS Retirement: 

Legal (95) 2%

FERS Retirement: 

Disability (268) 5%

FERS Retirement: 

Overpayment (123) 

2%

FERCCA (20) 0%

Individual Right of 

Action (243) 4%

USERRA (232) 4%

VEOA (197) 3%

Other (695) 12%
38 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Figure 2: Dispositions: Appeals Not Dismissed by Regional and Field 

Offices

Total Number of Appeals that were Not Dismissed: 2,340

Figure 3: Dispositions: Appeals Not Dismissed or Settled by 

Regional/Field Office

Based on 895 appeals adjudicated on the merits

Appeal Settled 

(1445) 62%

Action or Decision 

Upheld or Left 

Undisturbed (657) 

28%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (199) 9%

Mitigated (32) 1%

Other (7) 0%

Action or Decision 

Upheld or Left 

Undisturbed (657) 

73%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (199) 22%

Mitigated (32) 4%

Other (7) 1%
39 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Office of 

Personnel 

Management3

922 565 61.3 357 38.7 103 28.9 254 71.1

United States 

Postal Service 874 590 67.5 284 32.5 203 71.5 81 28.5

Department of 

Veterans Affairs 857 505 58.9 352 41.1 240 68.2 112 31.8

Department of 

the Army 614 340 55.4 274 44.6 189 69 85 31

Department of 

the Navy 359 200 55.7 159 44.3 110 69.2 49 30.8

Department of 

Homeland 

Security

352 208 59.1 144 40.9 86 59.7 58 40.3

Department of 

the Air Force 339 173 51 166 49 129 77.7 37 22.3

Department of 

Defense 275 168 61.1 107 38.9 67 62.6 40 37.4

Department of 

Treasury 215 137 63.7 78 36.3 56 71.8 22 28.2

Department of 

Justice 151 89 58.9 62 41.1 32 51.6 30 48.4

Department of 

Agriculture 138 83 60.1 55 39.9 30 54.5 25 45.5

Department of 

Interior 136 86 63.2 50 36.8 38 76 12 24

Department of 

Health and 

Human Services

102 61 59.8 41 40.2 28 68.3 13 31.7

Department of 

Transportation 75 41 54.7 34 45.3 25 73.5 9 26.5

Social Security 

Administration 72 43 59.7 29 40.3 16 55.2 13 44.8

Department of 

Commerce 69 45 65.2 24 34.8 15 62.5 9 37.5

Department of 

Labor 62 43 69.4 19 30.6 6 31.6 13 68.4

Department of 

Energy 37 25 67.6 12 32.4 6 50 6 50

Department of 

State 29 21 72.4 8 27.6 4 50 4 50

Department of 

Housing and 

Urban 

Development

26 17 65.4 9 34.6 5 55.6 4 44.4

General Services 

Administration 23 13 56.5 10 43.5 8 80 2 20

Environmental 

Protection 

Agency

16 7 43.8 9 56.3 4 44.4 5 55.6

Small Business 

Administration 15 13 86.7 2 13.3 1 50 1 50
40 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Federal Deposit 

Insurance 

Corporation

14 10 71.4 4 28.6 2 50 2 50

Smithsonian 

Institution 13 6 46.2 7 53.8 6 85.7 1 14.3

Government 

Printing Office 9 5 55.6 4 44.4 2 50 2 50

Agency for 

International 

Development

8 6 75 2 25 0 0 2 100

Department of 

Education 8 4 50 4 50 4 100 0 0

International 

Boundary and 

Water 

Commission

8 6 75 2 25 2 100 0 0

National 

Aeronautics and 

Space 

Administration

8 3 37.5 5 62.5 3 60 2 40

American Battle 

Monuments 

Commission

4 1 25 3 75 2 66.7 1 33.3

Armed Forces 

Retirement Home 4 2 50 2 50 2 100 0 0

Court Services 

and Offender 

Supervision

4 2 50 2 50 2 100 0 0

Railroad 

Retirement 

Board

4 0 0 4 100 4 100 0 0

Selective Service 

System 4 2 50 2 50 2 100 0 0

Equal 

Employment 

Opportunity 

Commission

3 2 66.7 1 33.3 1 100 0 0

Federal 

Emergency 

Management 

Agency

3 2 66.7 1 33.3 0 0 1 100

Tennessee Valley 

Authority 3 3 100 0 0 0 0 0 0

Broadcasting of 

Governors 2 1 50 1 50 1 100 0 0

Federal Labor 

Relations 

Authority

2 0 0 2 100 2 100 0 0

National Labor 

Relations Board 2 0 0 2 100 2 100 0 0

National Science 

Foundation 2 1 50 1 50 1 100 0 0

Office of 

Government 

Ethics

2 1 50 1 50 1 100 0 0
41 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

African 

Development 

Foundation

1 0 0 1 100 1 100 0 0

CIA 1 1 100 0 0 0 0 0 0

Commission on 

Civil Rights 1 1 100 0 0 0 0 0 0

Federal 

Communications 

Commission

1 1 100 0 0 0 0 0 0

Federal Housing 

Finance Agency 1 1 100 0 0 0 0 0 0

Federal Maritime 

Commission 1 0 0 1 100 1 100 0 0

Federal 

Retirement Thrift 

Investment BOA

1 0 0 1 100 1 100 0 0

Federal Trade 

Commission 1 1 100 0 0 0 0 0 0

Government of 

the District of 

Columbia

1 1 100 0 0 0 0 0 0

Judicial Branch 1 1 100 0 0 0 0 0 0

Merit Systems 

Protection Board 1 1 100 0 0 0 0 0 0

National Credit 

Union 

Administration

1 0 0 1 100 1 100 0 0

Office of Special 

Counsel 1 1 100 0 0 0 0 0 0

Other 1 1 100 0 0 0 0 0 0

Pension Benefit 

Guaranty 

Corporation

1 1 100 0 0 0 0 0 0

Securities and 

Exchange 

Commission

1 0 0 1 100 1 100 0 0

TOTAL 5881 3541 60.2 2340 39.8 1445 61.8 895 38.2

1 Percentages in Columns Dismissed and Not Dismissed are of Decided.

2 Percentages in Columns Settled and Adjudicated are of Not Dismissed.

3 Most appeals in which OPM is the agency are retirement cases involving decision made by OPM as the administrator 

of the Civil Service Retirement System and the Federal Employees Retirement System.
42 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # %

Office of Personnel 

Management2

254 183 72 64 25.2 1 .4 6 2.4

United States Postal 

Service 81 56 69.1 18 22.2 7 8.6 0 .0

Department of Veterans 

Affairs 112 86 76.8 19 17 6 5.4 1 .9

Department of the Army 85 60 70.6 23 27.1 2 2.4 0 0

Department of the Navy 49 32 65.3 15 30.6 2 4.1 0 0

Department of Homeland 

Security 58 45 77.6 9 15.5 4 6.9 0 0

Department of the Air 

Force 37 23 62.2 14 37.8 0 .0 0 0

Department of Defense 40 28 70 11 27.5 1 2.5 0 0

Department of the 

Treasury 22 20 90.9 1 4.5 1 4.5 0 0

Department of Justice 30 23 76.7 6 20 1 3.3 0 0

Department of Agriculture 25 15 60 9 36 1 4.0 0 0

Department of the 

Interior 12 9 75 2 16.7 1 8.3 0 0

Department of Health and 

Human Services 13 8 61.5 3 23.1 2 15.4 0 0

Department of 

Transportation 9 9 100 0 0 0 .0 0 0

Social Security 

Administration 13 9 69.2 3 23.1 1 7.7 0 0

Department of Commerce 9 8 88.9 0 0 1 11.1 0 0

Department of Labor 13 13 100 0 0 0 0 0 0

Department of Energy 6 5 83.3 1 16.7 0 0 0 0

Department of State 4 4 100 0 0 0 0 0 0

Department of Housing 

and Urban Development 4 4 100 0 0 0 0 0 0

General Services 

Administration 2 2 100 0 0 0 0 0 0

Environmental Protection 

Agency 5 5 100 0 0 0 0 0 0

Small Business 

Administration 1 0 0 0 0 1 100.0 0 0

Federal Deposit Insurance

Corporation 2 2 100 0 0 0 0 0 0

Smithsonian Institution 1 1 100 0 0 0 0 0 0

Government Printing 

Office 2 2 100 0 0 0 0 0 0
43 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # %

Agency for International 

Development 2 2 100 0 0 0 0 0 0

Department of Education 0 0 0 0 0 0 0 0 0

International Boundary 

and Water Commission 0 0 0 0 0 0 0 0 0

National Aeronautics and 

Space Administration 2 2 100 0 0 0 0 0 0

American Battle 

Monuments Commission 1 0 0 1 100 0 0 0 0

Armed Forces Retirement 

Home 0 0 0 0 0 0 0 0 0

Court Services and 

Offender Supervision 0 0 0 0 0 0 0 0 0

Railroad Retirement 

Board 0 0 0 0 0 0 0 0 0

Selective Service System 0 0 0 0 0 0 0 0 0

Equal Employment 

Opportunity Commission 0 0 0 0 0 0 0 0 0

Federal Emergency 

Management Agency 1 1 100 0 0 0 0 0 0

Tennessee Valley 

Authority 0 0 0 0 0 0 0 0 0

Broadcasting Board of 

Governors 0 0 0 0 0 0 0 0 0

Federal Labor Relations 

Authority 0 0 0 0 0 0 0 0 0

National Labor Relations 

Board 0 0 0 0 0 0 0 0 0

National Science 

Foundation 0 0 0 0 0 0 0 0 0

Office of Government 

Ethics 0 0 0 0 0 0 0 0 0

African Development 

Foundation 0 0 0 0 0 0 0 0 0

CIA 0 0 0 0 0 0 0 0 0

Commission on Civil 

Rights 0 0 0 0 0 0 0 0 0

Federal Communications 

Commission 0 0 0 0 0 0 0 0 0

Federal Housing Finance 

Agency 0 0 0 0 0 0 0 0 0

Federal Maritime 

Commission 0 0 0 0 0 0 0 0 0

Federal Retirement Thrift 

Investment Board 0 0 0 0 0 0 0 0 0

Federal Trade 

Commission 0 0 0 0 0 0 0 0 0

Government of the 

District of Columbia 0 0 0 0 0 0 0 0 0
44 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # %

Judicial Branch 0 0 0 0 0 0 0 0 0

Merit Systems Protection 

Board 0 0 0 0 0 0 0 0 0

National Credit Union 

Administration 0 0 0 0 0 0 .0 0 0

Office of Special Counsel 0 0 0 0 0 0 .0 0 0

Other 0 0 0 0 0 0 .0 0 0

Pension Benefit Guaranty 

Corporation 0 0 0 0 0 0 .0 0 0

Securities and Exchange 

Commission 0 0 0 0 0 0 .0 0 0

TOTAL 895 657 73.4 199 22.2 32 3.6 7 .8

1 Adjudicated, i.e., not dismissed or settled.

2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator 

of the Civil Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
45 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Headquarters Case Processing

Table 5: Disposition of Petitions for Review (PFR) of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied Denied But

Reopened Granted

Type of Case # # % # % # % # % # %

Adverse Actions 375 20 5.33 8 2.13 226 60.27 38 10.13 83 22.13

Termination of 

Probationers 49 6 12.24 1 2.04 35 71.43 1 2.04 6 12.24

Reduction in Force 10 1 10.00 0 .00 1 10.00 7 70.00 1 10.00

Performance 13 0 .00 1 7.69 7 53.85 4 30.77 1 7.69

Acceptable Level of 

Competence 2 0 .00 0 .00 1 50.00 0 .00 1 50.00

Suitability 6 1 16.67 0 .00 3 50.00 1 16.67 1 16.67

CSRS Retirement-Legal 37 2 5.41 2 5.41 27 72.97 1 2.70 5 13.51

CSRS RetirementDisability 4 1 25.00 0 .00 1 25.00 1 25.00 1 25.00

CSRS RetirementOverpayment 2 0 .00 1 50.00 0 .00 0 .00 1 50.00

FERS Retirement-Legal 9 1 11.11 1 11.11 3 33.33 1 11.11 3 33.33

FERS RetirementDisability 16 2 12.50 0 .00 10 62.50 0 .00 4 25.00

FERS RetirementOverpayment 14 0 .00 0 .00 11 78.57 1 7.14 2 14.29

FERCCA 3 1 33.33 0 .00 1 33.33 1 33.33 0 .00

Individual Right of 

Action 61 2 3.28 0 .00 43 70.49 1 1.64 15 24.59

USERRA - Uniformed 

Services Employment 

Act

26 1 3.85 0 .00 19 73.08 2 7.69 4 15.38

VEOA - Veterans 

Employment 

Opportunity Act

48 3 6.25 0 .00 34 70.83 5 10.42 6 12.50

Other 158 14 8.86 1 .63 70 44.30 11 6.96 62 39.24

Total 833 55 6.60 15 1.80 492 59.06 75 9.00 196 23.53
46 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Figure 4: Types of Petitions for Review (PFRs)

Total Number of Petitions for Review (PFR): 833

Adverse Actions 

(375) 45%

Terminaton of 

Probationers (49) 

6%

Reduction in Force 

(10) 1%

Performance (13) 

2%

Acceptable Level of 

Competence (2) 0%

Suitability (6) 1%

CSRS Retirement: 

Legal (37) 4%

CSRS Retirement: 

Disability (4) 0%

CSRS Retirement: 

Overpayment (2) 

0%

FERS Retirement: 

Legal (9) 1%

FERS Retirement: 

Disability (16) 2%

FERS Retirement: 

Overpayment (14) 

2%

FERCCA (3) 0%

Individual Right of 

Action (61) 7%

USERRA (26) 3%

VEOA (48) 6%

Other (158) 19%
47 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Figure 6: Disposition of Petitions for Review Granted

Based on 196 PFRs Granted

Initial Decision 

Affirmed (22) 11%

Initial Decision 

Reversed (24) 12%

Case Remanded 

(138) 71%

Agency Action 

Mitigated (0) 0%

Other (12) 6%

Figure 5: Disposition of Petitions for Review of Initial Decisions

Total Number of PFRs: 833

Dismissed (55) 7%

Settled (15) 2%

Denied (492) 59%

Denied but Reopened 

(75) 9%

Granted (196) 23%
48 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Figure 7: Disposition of Petitions for Review

Denied but Reopened

Based on 75 PFRs Denied but Reopened

Initial Decision 

Affirmed (66) 88%

Initial Decision 

Reversed (0) 0%

Case Remanded (0) 

0%

Agency Action 

Mitigated (0) 0%

Other (9) 12%
49 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # % # % # %

United States 

Postal Service 178 13 7.3 3 1.69 75 42.13 11 6.18 76 42.7

Department of the 

Army 95 7 7.37 4 4.21 57 60 9 9.47 18 18.95

Office of Personnel 

Management1

88 7 7.95 4 4.55 58 65.91 5 5.68 14 15.91

Department of 

Veterans Affairs 79 7 8.86 0 0 58 73.42 7 8.86 7 8.86

Department of 

Homeland Security 67 1 1.49 2 2.99 43 64.18 8 11.94 13 19.4

Department of the 

Navy 57 4 7.02 0 0 30 52.63 7 12.28 16 28.07

Department of 

Defense 43 3 6.98 0 0 29 67.44 2 4.65 9 20.93

Department of 

Justice 38 2 5.26 0 0 23 60.53 6 15.79 7 18.42

Department of the 

Air Force 33 2 6.06 0 0 23 69.7 3 9.09 5 15.15

Department of the 

Treasury 33 4 12.12 0 0 25 75.76 1 3.03 3 9.09

Department of 

Health and Human 

Service

19 0 0 0 0 8 42.11 7 36.84 4 21.05

Department of the 

Interior 16 2 12.5 0 0 8 50 2 12.5 4 25

Department of 

Agriculture 15 0 0 0 0 10 66.67 2 13.33 3 20

Department of 

Transportation 14 0 0 1 7.14 7 50 1 7.14 5 35.71

Department of 

Commerce 8 0 0 0 0 7 87.5 1 12.5 0 0

Department of 

State 8 1 12.5 0 0 6 75 0 0 1 12.5

Social Security 

Administration 8 0 0 0 0 5 62.5 1 12.5 2 25

Department of 

Labor 7 0 0 1 14.29 5 71.43 0 0 1 14.29

Department of 

Energy 4 0 0 0 0 2 50 0 0 2 50

Department of 

Housing and Urban 

Development

4 0 0 0 0 3 75 0 0 1 25

Pension Benefit 

Guaranty 4 0 0 0 0 0 0 0 0 4 100
50 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # % # % # %

Corporation

Environmental 

Protection Agency 2 0 0 0 0 1 50 0 0 1 50

General Services 

Administration 2 0 0 0 0 1 50 1 50 0 0

Smithsonian 

Institution 2 0 0 0 0 2 100 0 0 0 0

Armed Forces 

Retirement Home 1 0 0 0 0 1 100 0 0 0 0

Department of 

Education 1 0 0 0 0 1 100 0 0 0 0

Federal Deposit 

Insurance 

Corporation

1 0 0 0 0 1 100 0 0 0 0

Government 

Printing Office 1 0 0 0 0 0 0 1 100 0 0

National 

Aeronautics and 

Space Admin

1 0 0 0 0 1 100 0 0 0 0

Nuclear Regulatory 

Commission 1 0 0 0 0 1 100 0 0 0 0

Office of 

Management and 

Budget

1 1 100 0 0 0 0 0 0 0 0

Securities and 

Exchange 

Commission

1 0 0 0 0 1 100 0 0 0 0

Small Business 

Administration 1 1 100 0 0 0 0 0 0 0 0

TOTAL 833 55 6.6 15 1.8 492 59.06 75 9 196 23.53

1 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator 

of the Civil Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
51 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Summaries of Merit Systems Studies

In FY 2012, MSPB completed three reports and published three editions of the Issues of Merit 

newsletter, which are summarized below.

Employee Perceptions of Federal Workplace Violence

Violence can occur in any workplace. When physical attacks, threats of attack, harassment, 

intimidation, or bullying occur in the workplace, organizations incur a number of direct and indirect 

costs. These costs include medical expenses, property restoration, psychological care for victims, and 

increased security, as well as higher employee turnover, reduced productivity, and lower employee 

commitment to their work or their organization. Some estimates have placed the costs of workplace 

violence to U.S. employers at billions of dollars every year.

Employee Perceptions of Federal Workplace Violence presented the results of a 2010 MSPB survey 

regarding Federal employee perceptions of violence in the Federal workplace. According to that 

survey, 13 percent of Federal employees observed an incident of physical assault, threat of assault, 

harassment, intimidation, or bullying over the preceding two years. The vast majority of these 

incidents were perpetrated by current or former Federal employees, rather than someone external to 

the organization. One-quarter of the violent incidents that Federal employees observed resulted in 

either physical injury or damage to/loss of property. Violence perpetrated by Federal employees 

resulted in physical injury or damage/loss of property the least frequently of all types of 

perpetrators. 

Our findings indicate that a majority of survey respondents believe their agencies take sufficient 

steps to ensure their safety while at work. However, fewer respondents who observed violent acts by 

current or former Federal employees or by employees’ abusive intimate partners agreed that their 

agencies take sufficient steps to ensure their safety than did employees who observed violent acts by 

other individuals.

Effective agency anti-violence programs may help reduce the number of incidents that occur and 

may mitigate the damage caused when an incident does occur. We recommend agencies ensure that 

their workplace violence prevention programs address violence caused by all perpetrators, 

specifically Federal employees. Such programs should allow for mitigation strategies to be developed 

at an appropriate organization level to take into account varying geographic locations, organizational 

missions, and occupational mixes. In addition, Federal managers should foster organizational 

cultures that do not tolerate violent behaviors and that take reports of such behaviors seriously. 

Also, improved data collection could help Federal agencies better allocate their limited resources 

against the sources of workplace violence.

Managing Public Employees in the Public Interest: Employee Perspectives on Merit 

Principles in Federal Workplaces

Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal 

Workplaces discusses Federal employee perceptions regarding the extent to which Federal agencies 

are adhering to the MSPs codified at 5 U.S.C. § 2301. Data from a recent survey conducted by 

MSPB indicate that Federal employees’ perceptions that their work unit is successful in meeting the 

merit principles tend to vary by principle. When asked for their level of agreement with 25 questions 
52 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

related to the MSPs, respondents were inclined to have fewer positive views for some questions 

associated with stewardship issues than for most questions associated with fairness or employee 

protections, although those two areas also showed room for improvement.

The stewardship questions that had the lowest level of positive responses focused on the extent to 

which management: (1) eliminates unnecessary functions and positions; and (2) effectively addresses 

poor performing employees. Respondents also expressed some concerns about the ability of 

organizations to retain good employees and agency support for necessary training. While these 

management responsibilities have always been important to the health of the merit systems, in the 

current fiscal environment it may be more necessary than ever for agencies to demonstrate that they 

are good stewards of the resources entrusted to them—including human capital. This report 

contains recommendations to address employee perceptions related to stewardship.

Federal Employee Engagement: The Motivating Potential of Job Characteristics and 

Rewards

Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards examines 

motivation levels in the Federal workforce and discusses steps that Federal agencies can take to 

enhance employee engagement and performance. Federal employee motivation matters to both 

Federal agencies and the American people because Federal employees who report high levels of 

motivation are more likely to perform at a high level than their less-motivated coworkers. 

Consequently, understanding and sustaining employee motivation is critical to effective and efficient 

Government, especially in the current fiscal climate. A reassuring finding is that most Federal 

employees reported that they were motivated—more than 70 percent agreed with the statement, “I 

feel highly motivated in my work.” However, MSPB also found opportunities for improvement in 

two areas.

The first area is job design. MSPB found that employees are likely to perform better when their jobs 

are meaningful, afford autonomy, and provide interesting and challenging assignments. For example, 

Federal agencies should design jobs in ways that enable Federal employees to make full use of their 

skills, which can subtly encourage them to share their insights and put forth their best efforts. 

The second area is rewards. The good news is that Federal employees are not motivated primarily by 

monetary rewards, which is especially reassuring in a time of fiscal austerity. Federal agencies can 

make better use of rewards flexibilities by crafting rewards to be responsive to what employees 

value. In that regard, one particularly useful insight from our research is that most Federal 

employees valued interesting work and a sense of accomplishment more highly than they did cash 

awards or bonuses. As forces press for a more efficient and effective Federal workforce, our 

findings show that leaders should remain focused on the things that are important and have always 

been important to employee motivation.

Issues of Merit Newsletter

MSPB’s Issues of Merit newsletter offers insights and analyses on topics related to Federal human 

resources management—featuring findings and recommendations from MSPB’s independent 

research—to help improve the Government’s merit systems. The newsletter’s target audience 

includes Federal policy-makers, managers and executives, human resources professionals, social 

science researchers, and academics.
53 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Each edition included findings from MSPB’s research, information to help clarify readers’ 

understanding of employment issues, and the OPE Director’s perspectives on specific human capital 

matters. Articles related to specific MSPB studies addressed topics such as employee engagement, 

employee readiness for telework, case law for conducting reference checks, issues in hiring of

inaccuracy and exaggeration in self-assessments of training and development, advancement of 

women in the Federal Government, violence in the workplace, and favoritism.

MSPB issued three editions of Issues of Merit in FY 2012, transitioning from four scheduled editions 

per year to realize cost savings and take fuller advantage of MSPB’s public website. The newsletter 

will now be issued in September, when the pace of Federal work accelerates after the summer; in 

January, following the end-of-year holidays; and in May, just before the beginning of summer. The 

reduced print schedule will be balanced by making more content available through MSPB’s website, 

such as rotating content on topical issues and “mini-briefings” summarizing findings and 

recommendations from MSPB studies.
54 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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55 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significant Actions of the U.S. Office of Personnel Management

As required by statute, MSPB reviews and reports on the significant actions of OPM including an 

analysis of whether OPM’s actions are in accord with merit system principles (MSPs, 5 U.S.C. 

§2301) and free from prohibited personnel practices (PPPs, 5 U.S.C. §2302). OPM’s actions broadly

affect the Federal workforce, multiple Federal agencies, or applicants for Federal jobs. The OPM 

significant actions MSPB reviews relate to or have the potential to directly or indirectly affect one or 

more of the MSPs or PPPs. Almost all OPM actions have the potential to impact the effectiveness 

and efficiency of the Federal workforce (MSP 5) and/or fair and equitable treatment in a variety of 

contexts (MSP 2). Depending on the nature of a particular OPM action, the action has the potential 

to affect or involve other specific MSPs and/or PPPs. Brief information about the additional MSPs 

and/or PPPs that may potentially be affected by a particular OPM action is included in the 

‘significance’ section following each action. This report includes OPM’s significant actions that 

involve human capital management policy (including OPM action in a case concerning MSPB’s 

jurisdiction over appeals in actions taken for reasons related to national security) and delivery of 

services and benefits.

Human Capital Management Policy

Actions Related to Federal Recruitment and Hiring

This section summarizes selected OPM actions related to Federal recruitment and hiring, focusing 

on three elements of OPM’s hiring reform initiative:

 Establishment of the Pathways Programs;

 Reducing time to hire; and

 USA Hire, an OPM-developed approach for assessing applicants for commonly-filled 

professional and administrative occupations.

Issuance of Final Regulations for the Pathways Programs

OPM issued final regulations12 for the Pathways Programs13 which became effective July 10, 2012. 

The intent is to streamline the hiring process and provide students and recent graduates—groups 

that OPM views as crucial to meeting the Federal Government’s workforce needs—opportunities 

for training and potential permanent Federal employment.

To that end, the President exercised, through OPM, his statutory authority to except positions from 

the competitive service.14 The final regulations establish a new component of the excepted service 

under title 5, United States Code. That component, Schedule D includes positions “...for which the 

competitive service requirements make impracticable the adequate recruitment of sufficient numbers 

of students attending qualifying educational institutions or individuals who have recently completed 

qualifying educational programs.”15 The final regulation creates three excepted service appointing 

authorities; an Internship Program, a Recent Graduates Program, and a Presidential Management 

Fellows Program collectively referred to as the Pathways Programs. 

 

12 Excepted Service, Career and Career-Conditional Employment, and Pathways Programs: Final Rules. Federal Register 

Vol. 77 No.92. Part III. 5 C.F.R. Parts 213, 302, 315 et al., May 11, 2012.

13 U.S. Merit Systems Protection Board, Annual Report for FY 2011, pp. 51–53.

14 5 U.S.C. §3302

15 5 CFR §213.3401
56 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

As part of its justification for establishing the Pathways Programs, OPM contended that the groups 

targeted by the Pathways Programs, recent graduates in particular, are often disadvantaged by 

competitive examining. OPM’s rationale is that because many agencies use ratings of training and 

experience to assess job applicants when conducting a competitive examination, students, and recent 

graduates who typically have minimal or no job-related work experience will receive lower scores 

than applicants with extensive experience, which may effectively eliminate them from consideration 

for appointment.

To guide agency implementation and address issues encountered with the Federal Career Intern 

Program (the predecessor of the Recent Graduates Program), OPM integrated five core principles 

into the Pathways Programs:

 Limited scope: In particular, the Pathways Programs are to be used “as a supplement to, and 

not a substitute for, the competitive hiring process;”16

 Transparency: Agencies must provide OPM with information about available Pathways 

Programs positions. OPM will then post the job announcement information on USAJOBS, a 

centralized website frequently consulted by Federal jobseekers;

 Fairness to veterans: Advertisement through USAJOBS will provide members of the public 

(including veterans) information about Federal employment opportunities. Also, veterans’ 

preference rules apply to the Pathways Programs, and veterans may apply for opportunities 

in the Recent Graduates Program within six years of graduation (instead of within two years, 

which is the usual limit) if they were unable to apply because of military duty;

 Agency investment: Agencies are required to provide meaningful training to the students 

and recent graduates they select; and

 OPM oversight: Agencies must: (1) enter into a memorandum of understanding (MOU) 

with OPM prior to using the Pathways Programs. This MOU must be re-executed every two 

years; (2) designate a Pathways Programs Officer to serve as the point of contact with OPM; 

and (3) submit an annual report to OPM on their use of the Pathways Programs, to include 

information on both past appointments and projected use. Also, to prevent excessive use, 

OPM may establish limits on appointments under the Pathways Programs and on 

conversions of Pathways Programs participants to permanent Federal employment. The 

Director of OPM also retains authority to revoke an agency’s use of the Pathways Programs.

Significance

As the final regulations are recent, it is too soon to tell how Federal agencies will implement and use 

the Pathways Programs, or how OPM will exercise its oversight authorities. We note that the final 

regulations are little changed, in most important respects, from the proposed regulations17 that OPM 

issued in August 2011. Consequently, the broad issues and concerns that MSPB highlighted when 

discussing the proposed Pathways Programs in its 2011 Annual Report—such as the question of 

whether 5 U.S.C. 3302 authorizes exceptions to competitive examination that are, arguably, personbased rather than position-based—remain relevant.18 MSPB plans to monitor implementation of the 

Pathways Programs closely. In addition to MSPs 2 and 5, the Pathways Program relates to hiring 

based on relevant qualifications to achieve a workforce that is representative of society, and 

advancement on the basis of relative ability, knowledge, skills (MSP 1).

 

16 Executive Order 13562. Recruiting and Hiring Students and Recent Graduates. Vol. 75. No. 248. December 30, 2010.

17 Excepted Service, Career and Career-Conditional Employment; and Pathways Programs, Action: Proposed rule with 

request for comments, 76 FR 47495-47514, August 5, 2011.

18 U.S. Merit Systems Protection Board, Annual Report for FY 2011, pp. 51-53.
57 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Reducing Time to Hire

OPM first focused on reducing the time to hire in 2008 as part of its End-to-End Hiring Initiative19

and has maintained this focus under the Administration’s hiring reform initiative.20 OPM has found 

that agencies have varying ability to collect and analyze data, which affects the reliability and integrity 

of reported results. To provide more consistency across agencies, OPM has worked with a group of 

agency Chief Human Capital Officers (CHCOs) to develop guidelines for calculating time to hire.21

Significance

Although notable progress has been made to reduce the time to hire, it appears that few agencies are 

consistently meeting the goal of hiring employees in 80 or fewer calendar days.22 As noted in 

previous MSPB reports, the length of the hiring process can contribute to Federal agencies losing 

good candidates who are not willing or able to wait.23 OPM’s guidance for reporting hiring results 

should lead to more reliable and usable calculations across the Federal Government, helping 

agencies gauge progress and make improvements to hiring processes. Reducing time to hire relates 

to MSPs 1, 2, and 5.

Pilot of USA Hire

As part of its hiring reform initiative, OPM created ASSESS (renamed USA Hire24) which has been an 

integrated technology-based approach for evaluating applicants for commonly-filled 

Governmentwide occupations. USA Hire was intended to directly support two goals of hiring 

reform: improved quality of hire and reduced time to hire. Features of USA Hire include:

 Online assessments: Either proctored or unproctored25 online examinations;

 Assessments: A battery of tests that directly evaluate competencies, instead of using indirect 

measures such as descriptions of training and experience; and

 Portable results: After completing the tests, an applicant may use the results to apply for any 

position that requires the same test batteries.

When first introduced, OPM made ASSESS available to several pilot agencies without charge. Pilot 

testing will continue in FY 2013, but on a fee-for-service basis. OPM has indicated that it is 

evaluating a pricing structure that should be cost-effective and affordable for agencies.26 OPM is 

currently developing metrics to evaluate the pilot and plans to use the resulting data to make 

improvements.

 

19 Accessed at www.opm.gov/publications/EndToEnd-HiringInitiative.pdf, included a road map that established the 

goal of hiring employees in 80 or fewer calendar days, as measured by the time elapsed between the initiation of a hiring 

action to an official offer of employment. 

20 President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, Subject: Improving 

the Federal Recruitment and Hiring Process, May 11, 2010.

21 Hire the Best Talent. Time to Hire.

22 Id. 2 agencies out of 24 reported an average hiring time of 80 days or less; 13 reported average times of 101 days or 

more. The 80-day standard was established in OPM guidance for the End-to-End Hiring Initiative.

23 U.S. Merit Systems Protection Board, In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level 

Employees for Outside the Federal Government, February 2008; and U.S. Merit Systems Protection Board, Attracting 

the Next Generation: A Look at Federal Entry-Level New Hires, January 2008.

24 This name is patterned after other OPM recruitment and staffing tools, notably USAJOBS (a Governmentwide 

recruitment and job posting portal) and USA Staffing (an automated hiring system).

25 Unproctored (unsupervised) examinations allow applicants to take the assessment at any time, from any location.

26 Based on communication with OPM representatives.
58 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significance

As of November 2012, USA Hire had been used to fill only a small number of positions (fewer than 

80) in a limited range of occupations (primarily financial and information technology occupations).27

Consequently, it is too soon to gauge the effects or success of this initiative. However, USA Hire 

appears to have potential to:

 Improve quality of hire: USA Hire’s assessment battery includes test types—such as 

cognitive ability, job knowledge, situational judgment, and personality/biodata—that can, 

individually or in combination, better predict job performance than can point-method 

ratings of training and experience. Individual agencies may lack the expertise and time to 

independently develop or validate such tests. Thus USA Hire could help agencies more 

effectively assess and select applicants on the basis of relative ability;

 Reduce time to hire: Using technology to administer and score assessments can produce a 

list of qualified applicants more quickly than manual alternatives, particularly when there are 

large numbers of applicants;

 Provide economies of scale: If acceptance and use increase, USA Hire may be less costly for 

agencies than individually purchasing or developing and administering assessments; and

 Reduce the scope and use of exceptions to competitive examining: Direct assessment of 

competencies could eliminate or reduce the reported tendency of competitive examinations 

to disadvantage applicants with minimal or no job-related work experience.28

The Pilot of USA Hire relates to MSPs 1, 2, and 5. 

Presidential Transition Guidance and Review Procedures for Placement of Political 

Appointees in the Career Service

On June 8, 2012, OPM Director John Berry sent a memorandum to agency leaders to remind them 

that “any appointments of political appointees, Schedule C employees, and Noncareer SES members 

to competitive or non-political excepted service positions or to career SES positions require careful 

attention to ensure they comply with merit principles regarding fair and open competition.”29 In 

addition to the Memorandum, OPM provided Guidelines on Processing Certain Appointments and 

Awards during the 2012 Election Period, Civil Service Rules; and Do’s and Don’ts for Converting 

Political Appointees, Schedule C Employees and Noncareer SES Members to the Competitive or 

Non-Political Excepted Service. Several measures are in place to safeguard MSPs, including:

 OPM conducts a pre-appointment review and approval of any appointment of a current or 

recent political appointee to a position in the competitive service or the (non-political) 

excepted service;

 For potential appointments of a political appointee to the career SES, the agency conducts a 

Merit staffing review for compliance with MSPs and civil service laws prior to the 

submission to OPM for a similar compliance review, followed by submission of the 

candidates qualification to OPM’s Qualifications Review Board (QRB) for evaluation of 

leadership competencies; and

 Suspension of QRB processing of proposed SES appointments when an agency head leaves 

or is replaced.

 

27 Ibid.

28 Excepted Service, Career and Career-Conditional Employment; and Pathways Programs, Action: Proposed rule with 

request for comments, 76 FR 47495-47514, August 5, 2011.

29 John Berry, Director, U.S. Office of Personnel Management. Memorandum for Heads of Executive Departments and 

Agencies, Subject: Appointments and Awards During the 2012 Presidential Election Period. June 8, 2012.
59 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significance

Both career and noncareer employees are necessary to the effective operation of the Federal 

Government. However, it is imperative that the Federal agencies and Federal leaders recognize and 

respect distinctions between political appointees and career employees. In particular, as MSPB has 

stated previously, it is essential to ensure that appointments to career positions are made without 

regard to political affiliation.30

OPM has a vital role in preserving a merit-based career service, and the measures that OPM has 

established indicate that it recognizes this responsibility. In this regard, we note that OPM continues 

to review placements of political appointees into excepted service positions. Such review is both 

appropriate and necessary, in light of the number of positions in the excepted service and the fact 

that excepted-service employment often serves as a gateway to competitive service employment or 

operates as a functional equivalent to career employment in the competitive service. In addition to 

MSPs 1, 2 and 5, Presidential transition guidance relates to: employees maintaining high standards 

of integrity, conduct and concern for the public interest (MSP 4); and protecting employees against 

actions related to partisan political purposes (MSP 8). OPM’s guidance also relates to the 

prohibitions against: discrimination on the basis of political affiliation (PPP 1); coercion of political 

activity, or taking any action as reprisal for or refusal of any person to engage in political activity 

(PPP 3); granting preference or advantage not authorized by law for the purpose of improving or 

injuring the employment prospects of any person (PPP 6); and discrimination for or against an 

employee on the basis of conduct not relating to job performance (PPP 10).

OPM Request for Reconsideration of Conyers v. Department of Defense

In Conyers v. Department of Defense,

31 The Board held that it has jurisdiction over an appeal of a 

suspension of more than 14 days of an employee who occupies a non-critical sensitive position but 

is not required to have a security clearance or access to classified information. Accordingly, the case 

was returned to the AJ for adjudication under the Board’s usual adverse action standards instead of 

the limited review authorized for cases involving security clearances.

The Director of OPM exercised his authority under 5 U.S.C. § 7703(d) to seek judicial review of that 

decision from the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit granted review 

and determined that the Board erred, and that “[t]he core question is whether an agency 

determination concerns eligibility of an employee to occupy a sensitive position that implicates 

national security” and that the Board’s role in reviewing the case was accordingly limited.32 MSPB 

and the two appellants affected petitioned the Federal Circuit for an en banc rehearing of Berry v. 

Conyers.

33 On January 24, 2013, the court granted the petition for rehearing en banc, vacated their 

previous decision, and ordered new briefings on several issues in Berry v. Conyers.

34

Significance

Petitions by OPM for review of Board decisions are rare, reflecting the requirement that the 

Director of OPM must first determine, before requesting judicial review, “that the Board 

 

30 U.S. Merit Systems Protection Board, Annual Report for Fiscal Year 2011, p.1.

31 115 M.S.P.R. 572, 11, 14 (2010).

32 Berry v. Conyers, 692 F.3d 1223, 1237 (2012).

33 In Fiscal Year 2013, the Board and the two appellants affected by the Federal Circuit’s decision petitioned for an en 

banc rehearing in Berry v. Conyers, to which the Department of Justice responded on OPM’s behalf.

34 Berry v. Conyers, January 24, 2013 (No. 2011-3207).
60 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

erred...and that the Board’s decision will have a substantial impact on a civil service law, rule, 

regulation, or policy directive.”35

MSPB and OPM have expressed differing views on this case and on the proper interpretation of 

Department of the Navy v. Egan36 in which the U.S. Supreme Court held MSPB is prohibited from 

reviewing the merits of an agency adverse action that is based on the denial, revocation, or 

suspension of a security clearance. However, both OPM and MSPB agree that the underlying 

issues—the appellate rights of employees who occupy non-critical sensitive positions, and (more 

broadly) how to balance agency authority to make determinations and take personnel actions 

necessary to national security with procedural requirements designed to protect the efficiency of the 

service and employee rights—are serious and far-reaching. In addition to MSP 5 and PPP 10, 

OPM’s request for reconsideration of Conyers v. Department of Defense relates to retention of employees 

on the basis of performance (MSP 6).

Introduction of Standardized Performance Appraisal System for the Senior Executive 

Service

In January 2012, OPM (in coordination with OMB) announced37 a new standardized 

Governmentwide performance appraisal system for members of the Senior Executive Service (SES).38

This new system, which is to replace the multitude of systems currently employed by Federal agencies, 

is intended to provide “a more consistent and uniform framework to communicate expectations and 

evaluate the performance of SES members.”39 That consistency will support broader improvements in 

the SES, such as facilitating movement of executives across agencies, allowing agencies to share best 

practices, and enabling OPM to streamline its certification system for SES members.

The interagency workgroup40 chartered by the President’s Management Council (PMC) to 

coordinate development of this new system has standardized:

 The number of performance levels (five);

 Designations of the summary performance rating levels—one is the lowest rating level 

(unsatisfactory) through five, which is the highest rating level (outstanding);

 Performance standards and definitions;

 The method for deriving the summary rating; and

 The procedure for addressing poor performance.

SES performance appraisals are currently based on the Executive Core Qualifications (ECQs)—

leading people, leading change, results driven, business acumen, and building coalitions. The new

system retains the ECQs as performance measures, but shifts the focus from possession of 

 

35 5 U.S.C. §7703(d)

36 484 U.S. 518 (1988).

37 Memorandum from John Berry, Office of Personnel Management, Director and Jeffery Zients, U.S. Office of 

Management and Budget, Deputy Director for Management and Chief Performance Officer, Subject: Senior Executive 

Service Performance Appraisal System, dated January 4, 2012.

38 The new performance management system includes career, noncareer, limited term, and emergency senior executives 

covered by subchapter II of chapter 43 of title 5, United States Code.

39 Memorandum from John Berry, Office of Personnel Management, Director and Jeffery Zients, U.S. Office of 

Management and Budget, Deputy Director for Management and Chief Performance Officer, Subject: Senior Executive 

Service Performance Appraisal System, dated January 4, 2012.

40 The interagency workgroup consist of members from OPM, OMB, DoD, Office of the Director of National 

Intelligence, Department of Energy, Department of Labor, Department of Health and Human Services, Department of 

Veterans’ Affairs, Nuclear Regulatory Commission, and the Federal Energy Regulatory Commission.
61 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

competencies and technical expertise to achieving results through leadership. During FY 2012,

approximately 10 agencies adopted the new SES performance management system.41 An additional 

25-30 agencies are expected to implement the system in FY 2013, with remaining implementing on 

October 1, 2013.42

Significance

Development of the new system involved identifying leading practices from the Federal and private 

sectors and incorporating them into the SES performance management system design. While the 

design may be sound, the real test for successful performance management systems lies in 

implementation and acceptance by individuals under the system (e.g., the perception of fairness).

The challenges in standardizing performance evaluations across agencies for the SES—indeed, for 

any segment of the Federal workforce—should not be underestimated. However, the benefits of 

success could be substantial because it would enable agencies—beginning with top-level 

leadership—to learn from experience, both as raters and ratees. Establishing a standardized, sound, 

and credible performance appraisal system for the SES could also lay the groundwork for broader 

reforms of employee performance management and, eventually, pay and recognition. In addition to 

MSPs 2, 5 and 6, OPM’s introduction of a standardized performance appraisal system for the SES

relates to equal pay for work of equal value with consideration of national and local rates paid by 

private employers, and ensuring appropriate incentives and recognition for excellent performance 

(MSP 3).

Application of the Performance Appraisal Assessment Tool (PAAT)

As part of its responsibility for strategic management of human capital, OPM continues to use the 

Performance Appraisal Assessment Tool (PAAT) to help agencies design and implement resultsoriented performance appraisal systems.43 The PAAT describes 10 characteristics of a successful 

system, which include:44

 Aligning employee performance plans with agency goals;

 Involving employees in the design of the system and the development of their performance 

plans;

 Holding employees accountable for achieving results—not only for behaviors or 

competencies; and

 Providing consequences for performance by recognizing and rewarding outstanding 

performance and addressing poor performance.

PAAT standards include objective (e.g., number of employees who receive ratings at each of the 

performance rating levels) and subjective (e.g., perceptions of various aspects of the appraisal system 

implementation) measures that provide multiple sources of feedback and indicators on where 

adjustment should be made to improve the appraisal system.45 

 

41 According to an OPM representative, the following agencies have adopted the new SES performance management 

system: VA, Labor, HUD, OPM, FTC, NTSB, FLRA, USAID-OIC, OMB, DOT-OIG.

42 Based on communication with OPM representatives.

43 System Assessment Tool: Performance Appraisal Assessment Tool, http://www.opm.gov/perform/PAAT/GSPAAT-Instructions.pdf. The PAAT does not cover the Senior Executive Service, Senior Foreign Service, and the 

Foreign Service.

44 Ibid. For a description of all performance appraisal characteristics.

45 Agencies may use results from the Employee Viewpoint Survey (EVS) or their own survey that contain similar items 

designated in the EVS.
62 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significance

OPM correctly recognizes that developing an effective performance appraisal system requires 

regular review and continuing adjustment and refinement. This focus illustrates the importance of 

long-term commitment to improving performance appraisal systems. Since Fiscal Year 2007, the 

percentage of employees in Chief Human Capital Office (CHCO) agencies covered by appraisal 

systems that received scores between 70-84 points on the PAAT46 has increased.

47 Results for Fiscal 

Year 2012 have not been published.

For reasons discussed in the MSPB’s Annual Report for FY 2011—employee engagement, efficient 

uses of salary and award monies, and basis for retention, pay, and recognition— it is critical that 

agencies continue to improve performance management and that OPM continues to support them 

in their effort. Application of the PAAT relates to MSPs 3, 5, and 6.

Goals Engagement Accountability Results (GEAR) Pilot

In 2009, the National Council on Federal Labor-Management Relations (LMR Council) was created 

to “promote satisfactory labor relations and improve the productivity and effectiveness of the 

Federal Government.”48 Council members consist of the Director of OPM and the Deputy Director 

for Management of the Office of Management and Budget (OMB) as co-chairs, senior government 

officials, and representatives from Federal labor unions and management organizations. 

In order to enhance its productivity, the LMR Council formed a workgroup comprised of

representatives from a broad spectrum of functions related to employee or organization 

performance. The workgroup determined that issues of organizational performance and individual 

employee performance were so closely intertwined that both needed to be addressed simultaneously. 

In contrast to previous efforts, the workgroup did not recommend structural changes to existing 

performance management systems. Instead, it concentrated on practices and behaviors: 

communication between employees and supervisors; building trust to facilitate discussions of 

performance expectations in the context of strategic goals; providing timely and constructive 

feedback for short-term and long-term improvement; and discussion of employee development in 

conjunction with organizational needs. The workgroup also sought ways to improve the assessment, 

selection, training, and development of supervisors. The resulting recommendations, presented 

under the acronym GEAR (Goals, Engagement, Accountability, Results), were:49

 Articulate a high performance culture;

 Align employee performance management with organizational performance management;

 Implement accountability at all levels;

 Create a culture of engagement; and

 Improve the assessment, selection, development and training of supervisors.

 

46 For more specific rating scheme on the PAAT, please refer to the Performance Appraisal Assessment Tool Scoring 

Sheet. July 2010. Accessed at: https://fehb.opm.gov/perform/PAAT/GS-PAAT-ScoringSheet.pdf

47 U.S. Office of Personnel Management. Annual Performance Report for Fiscal Year 2011, p. 20. The percentage of 

employees in CHCO agencies who were covered by an appraisal system that scored least 80 points was 4% in FY 2007, 

17% in FY 2008, 27% in FY 2009, and 28% in FY 2011.

48 President Barack Obama, Executive Order 13522, Creating Labor-Management Forums to Improve Delivery of

Government Services, 74 FR 66203-66205, December 9, 2009.

49 National Council on Federal Labor-Management Relations, Employee Performance Management Workgroup, Report 

to the National Council on Federal Labor-Management Relations, Goals-Engagement-Accountability-Results: Getting 

in GEAR for Employee Performance Management, November 2011.
63 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significance

The focus and objectives of GEAR are consistent with MSPB’s research on managing for 

engagement. 50 MSPB has found the necessary behaviors are practiced less often than is desirable, 

which may explain some stakeholder skepticism51 about GEAR’s prospects for success. However, 

such skepticism reinforces the need for improvement and the fact that behavioral and cultural 

change does not occur quickly and usually requires substantial and sustained attention. We further 

note that the LMR Council took a collaborative approach to examining the issues, developing 

recommendations, and identifying pilot agencies. That could yield greater agency and employee 

acceptance—and, ultimately, more positive and lasting change—than previous approaches, which 

have often been top-down and directive. The GEAR Pilot relates to MSPs 3, 5, and 6.

Advancing Federal Agency Use of Telework

The Telework Enhancement Act of 201052 (the Act) set forth specific requirements for agencies (e.g., 

develop a policy, notify employees of telework eligibility, incorporate telework into continuity of 

operations plans, and designate a Telework Managing Officer).53 In addition to these requirements, 

the Act encourages agencies to establish other telework program goals—such as to facilitate 

recruitment and retention, reduce real estate cost, and reduce air pollution and energy 

consumption—and to measure progress toward achieving those goals.

The Act charged OPM with supporting and monitoring agency implementation of the Act’s 

requirements and objectives.54 In that capacity, OPM published the report 2012 Status of Telework in 

the Federal Government in June 2012. This report covers agency progress toward satisfying 

requirements of the Act; identification of benefits and barriers to telework; and examples of 

practices to increase benefits derived from telework. OPM reported that agencies have made 

substantial progress (for example, at the time information was collected for the report, 75 out of 87 

agencies had incorporated telework in their continuity of operations plans),55 but acknowledged that 

“the final combined telework participation estimates are unlikely to be reliable” because not all 

agencies have staff trained to perform the function and agencies use different methods to collect 

data.56 Accordingly, OPM has worked with agencies to develop Governmentwide standards for 

automated data collection and pilot-tested a revised data collection process in the summer of 2012.57

Significance

OPM continues to actively assist Federal agencies in meeting the Act’s requirements and promoting 

the use of telework to maximize its benefits. Examples of the guidance and tools provided by OPM 

are: a guide to telework;58 illustrations of how some agencies have set telework goals and identified 

 

50 U.S. Merit Systems Protection Board, Managing for Engagement-Communication, Connection, and Courage, July 

2009.

51 Federal Daily News. New Performance Management System More of the Same, Labor Leader Says. January 19, 2012. 

John Gage, then president of the American Federation of Government Employees, said he “did not see how the GEAR 

program—for goals, engagement, accountability and results—was any different from existing performance management 

systems.”

52 Pub. L. 111–292.

53 5 U.S.C. §6502.

54 5 U.S.C. §6504.

55 U.S. Office of Personnel Management, 2012 Status of Telework in the Federal Government: Report to the Congress, 

June 2012, p.32.

56 Id. (p. 7).

57 Id. (p. 10).

58 U.S. Office of Personnel Management, Guide to Telework in the Federal Government, April 2011.
64 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

metrics for measuring progress and practices for capturing necessary data;59 interactive web-based 

training for employees and managers;60 and guidance that incorporates telework into dismissal and 

closure procedures for the Federal Government in the Washington, D.C. area.61

OPM leadership could aid and accelerate the integration of telework into routine agency operations. 

Fuller integration of telework into agencies’ business strategies—beyond contingency and emergency 

planning—is essential if the Federal Government is to realize the full potential of telework to benefit 

agencies and employees and contribute to efficient and effective use of the Federal workforce.62

Advancing Federal agency use of telework relates to MSPs 1, 2, and 5.

Expansion of HR University

In 2010, the Chief Human Capital Officers (CHCO) Council and OPM established HR University 

(HRU), a Federal Governmentwide training resource to assist Federal HR professionals.63 The goals 

of HR University are to:

 Address competency and skill gaps within the Federal HR community, to enable HR 

professionals to function as “strategic business partners” rather than processors of 

transactions;

 Achieve savings through shared resources and economies of scale; and

 Identify and provide best-quality HR training across the Federal Government. 

Since its inception, HRU has registered 15,000 users, posted over 99 courses, and been used by over 

28 Government agencies.64 OPM continues to expand course offerings, which now include some 

college-level courses.65 Many courses are free or low cost, and OPM estimates that HRU has 

achieved approximately $18.6 million in cost savings.66

Significance

For several years, Chief Human Capital Officers (CHCOs) and the broader HR community have 

expressed concern that Federal HR professionals lack the competencies needed to succeed in a 

changed environment.67 Because HR professionals implement and influence programs including 

 

59 U.S. Office of Personnel Management, 2012 Status of Telework in the Federal Government: Report to the Congress,

June 2012.

60 The training courses Telework 101 for Employees and Telework 101 for Managers may be accessed and viewed 

through www.telework.gov.

61 John Berry, Director, U.S. Office of Personnel Management, Memorandum for Heads of Executive Departments and 

Agencies, “Subject: Washington, DC Area Dismissal and Closure Procedures,” December 15, 2010 and John Berry, 

Director, U.S. Office of Personnel Management, Memorandum for Heads of Executive Departments and Agencies, 

“Subject: Update to Washington, DC Area Dismissal and Closure Procedures,” March 3, 2011.

62 This is consistent with findings in U.S. Merit Systems Protection Board, Telework: Weighing the Information, 

Determining an Appropriate Approach, October 2011.

63 Accessed at www.hru.gov.

64 The number of registered users and number of available courses are based on a review of www.hru.gov on November 

2, 2012. Agency participation in HRU is based on the U.S. Office of Personnel Management. News Release: CHCO 

Council Receives Training Officers Consortium Award for its Work on HR University. July 5, 2012.

65 Statement of John Berry, Director, U.S. Office of Personnel Management, “Investing in an Effective Federal 

Workforce,” before the United States Senate, Subcommittee on Oversight of Government Management, The Federal 

Workforce And The District Of Columbia, September 19, 2012.

66 Id. As of November 2012, information on the cost savings calculation is available www.hru.gov, under the frequently 

asked questions (FAQs).

67 Partnership for Public Service. Building a Federal HR Workforce for the 21st Century. Report from an Action 

Planning Dialogue at the CHCO Council Fall Innovation Forum. September 30, 2010.
65 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

recruitment and placement, employee benefits, classification, compensation, performance 

management, employee relations, and labor relations, their advice and actions can have far-reaching 

consequences for both agencies and employees. HRU can help agencies develop HR professionals 

who have the skills needed to design and implement HR policies and practices that are consistent 

with law and merit system principles, supporting a Federal Government that works efficiently and 

effectively to serve the public interest. The expansion of HR University relates to MSPs 5 and 7.

Implementation of Phased Retirement

Since 2010, the number of Federal employee retirements has been on the rise.68 To facilitate the 

transfer of technical and institutional knowledge while allowing employees to make a less abrupt 

transition into retirement, Congress approved legislation to provide Federal employees an option for 

phased retirement, which was signed into law on July 6, 2012.69 As envisioned, employees at the end 

of their careers would be allowed to work part-time, receiving a reduced salary and a partial 

retirement annuity. In exchange, they would spend a portion of their time mentoring lessexperienced employees and aiding succession planning.70 While it is not anticipated that large 

numbers of employees would be interested in this arrangement, agencies retain the right to 

determine which employees can participate.71 OPM is currently drafting implementing regulations, 

which will be submitted to OMB for review prior to issuance for public comment.72

Significance

Phased retirement, once implemented, could be a useful tool to retain valuable, highly-experienced 

employees for a limited time and to help less-experienced employees prepare for new roles and 

responsibilities. We caution that phased retirement is not a substitute for workforce planning and 

succession management, areas in which the Federal Government’s planning and execution have 

often been lacking. However, phased retirement, if properly used, should contribute to efficient and 

effective use of the Federal workforce. For example, phased retirement could reduce disruption of 

mission-critical functions that can result from employee retirements, especially when such 

retirements coincide with—or are driven by—organizational downsizing and restructuring. The 

implementation of phased retirement relates to MSPs 3 and 5.

Guidance on Diversity and Inclusion

In August 2011, President Obama issued an Executive Order on diversity and inclusion (D&I) in 

the Federal Government that directed OPM to develop, in coordination with the Office of 

Management and Budget (OMB), the President’s Management Council (PMC), and the Equal 

Employment Opportunity Commission (EEOC), a Governmentwide strategic plan for diversity and 

inclusion. That strategic plan,73 which directed Federal agencies to develop agency-specific D&I 

 

68 Based on retirement statistics reported by the U.S. Office of Personnel Management. As of November 2012, 

retirements for 2000 through 2011 were reported at www.opm.gov/retire/statistics.aspx; claims received through 

October 2012 were reported at www.opm.gov/StrategicPlan/pdf/RetirementProcessingStatus.pdf. Claims received 

through October 2012 (approximately 94,800) exceeded the number of new annuitants for all of 2011 (approximately 

82,800).

69 Pub. L. 112-141, the Moving Ahead for Progress in the 21st Century Act (“MAP-21”), §100115.

70 U.S. Office of Personnel Management. Congressional Budget Justification and Annual Performance Plan FY 3013.

71 Frequently Asked Questions (FAQs) related to phased retirement, available as of November 2012 at 

http://www.opm.gov/FAQS/Search.aspx?q=phased%2bretirement.

72 Based on discussion with representatives from OPM.

73 U.S. Office of Personnel Management, Government-Wide Diversity and Inclusion Strategic Plan 2011, accessed in 

November 2012 at www.opm.gov/diversityandinclusion/reports/.
66 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

strategic plans, was issued in November 2011, accompanied by guidance74 on those agency-specific 

plans. In March 2012, 55 agencies submitted their D&I Strategic Plans to OPM.

OPM has identified, through its research, four elements of successful D&I plans: (1) diversity 

councils, (2) mentoring, (3) work/life balance, and (4) diversity in senior leadership. OPM review of 

those plans reveals that inclusion of these elements varies. For example, most agency plans included 

work/life programs, but relatively few addressed how to ensure diversity within the agency’s senior 

ranks. This is the first year that agencies have been required to develop D&I plans, and OPM 

anticipates that future plans will be better aligned with what it believes to be best practices.75

Significance

Striving for diversity and inclusion is fully consistent with the MSPs, and with the vision of a Federal 

Government that is representative, focused on the public interest, and efficient and effective. The 

concept of diversity in the plan and guidance extends beyond traditional dimensions (e.g., race and 

national origin, sex, ethnicity, age, religion, and disability), to encompass differences such as socioeconomic status, sexual orientation, and education. This broader conception more fully reflects the 

ways that citizens and employees can differ, and acknowledges that a workforce that is truly 

“representative of all segments of society” is diverse in ways beyond those explicitly enumerated in 

civil rights and other statutes.

An emphasis on inclusion is also consistent with, and supportive of, MSPs. Efficient and effective 

use of the workforce—which implies taking full advantage of the perspectives and experiences that 

employees can bring to bear on organizational goals and challenges—requires more than a 

workforce that resembles American society. It demands workplaces in which employees believe that 

they are respected and are able to make full use of their talents and insights.76 OPM’s guidance 

provides a framework for agencies to identify barriers to creating such workplaces, and to take 

specific actions to overcome those barriers. OPM’s guidance on diversity and inclusion relates to 

MSPs 1, 2, 4, 5, and 6 and PPP 10.

Extension of Certain Benefits to Same-Sex Partners

On July 20, 2012, OPM issued final regulations77 to extend some Federal benefits to same-sex 

partners of Federal employees. Under the regulation, same-sex partners are:

 Presumed to have an insurable interest for a survivor annuity;

 Eligible for noncompetitive appointment based on overseas employment; and

 Eligible for child care subsidies offered to lower-income civilian employees.

OPM also issued a proposed rule78 to amend the Federal Employees Health Benefits Programs to 

allow the children of a Federal employee and same-sex partner to receive health benefits, including 

dental and vision insurance.

 

74 http://www.opm.gov/diversityandinclusion/reports/DIAgencySpecificStrategicPlanGuidance.pdf

75 Based on discussions with OPM representatives in October 2012.

76 A rationale for diversity in the Federal Government, from a research and merit systems perspective, can be found at 

U.S. Merit Systems Protection Board. Fair and Equitable Treatment: Progress Made and Challenges Remaining,

December, 2009.

77 Presumption of Insurable Interest for Same-Sex Domestic Partners 77 Fed. Reg. 42909 (July 20, 2012).

78 Federal Employees Health Benefits Program and Federal Employees Dental and Vision Insurance Program: 

Expanding Coverage of Children Federal Flexible Benefits Plan: Pre-Tax Payment of Health Benefits Premiums 77 Fed. 

Reg. 42914 (July 20, 2012).
67 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Significance

Expanding the availability of benefits to same-sex partners could help the Federal Government 

maintain a contemporary and competitive benefits package, and support the Federal Government’s 

need to have a qualified and diverse workforce and inclusive workplaces. At the signing of an earlier 

memorandum granting some benefits to same-sex partners, President Obama stated that “Those 

companies recognize that offering (same-sex) partner benefits helps them compete for and retain the 

brightest and most talented employees. The Federal government is at a disadvantage on that score 

right now, and change is long overdue.”79 However, there are limits to what can be achieved through 

executive or administrative action; legislation will be necessary before the Federal Government can 

offer full benefits.80 The extension of certain benefits to same-sex partners involves MSPs 1, 2, and 

5, and PPP 1.

Delivery of Services and Benefits

Establishment of New Strategic Goal: Improve Access to Health Insurance

In FY 2012, OPM added the strategic goal of “Improve access to health insurance”81 to the four 

strategic goals it established in 2010.82 This goal encompasses responsibilities assigned to OPM 

under the Patient Protection and Affordable Care Act (ACA), which include:

 Implementation and oversight of at least two multi-state health plan options to be offered 

through affordable insurance exchanges beginning in 2014. The multi-state plans will be one 

of the health insurance options available to small businesses and uninsured individuals;

 Extending eligibility of insurance coverage through the Federal Employee Health Benefits 

Program and the Federal Employee Group Life Insurance Program to tribes and tribal 

organizations.

Significance

This new strategic goal—in particular, implementing multi-state health plans—may indirectly affect 

OPM’s strategic goals related to Federal human capital management and related significant actions,

which in turn could potentially affect some or all of the MSPs or PPPs.

Introduction of USAJOBS 3.0

USAJOBS (www.USAJOBS.gov) is the Federal Government’s main portal for information about 

Federal employment opportunities. In conjunction with its hiring reform initiative, OPM worked 

with agencies to identify information needs, then used in-house staff to design and build USAJOBS 

3.0. When USAJOBS 3.0 was implemented in October 2011, OPM experienced significant technical 

problems, and concerns about system access and usability were widespread and highly publicized.83

According to the ForeSee E-Government Satisfaction Index—based on survey data from 

approximately 300,000 users of 190 Federal websites—the satisfaction score dropped sharply after 

the 3.0 version was released. The range of satisfaction scores is from 1 to 100; a score of 80 or 

higher is considered superior because it can only be achieved if the organization meets or exceeds 

 

79 Ed O’Keefe. Obama Extends Benefits to Same-Sex Partners. The Federal Eye. June 2009.

80 For example, The White House, Office of the Press Secretary. Memorandum for the heads of executive Departments 

and Agencies, Subject: Extension of Benefits to Same-Sex Domestic Partners of Federal Employees. June 2, 2010.

81 U.S. Office of Personnel Management. A New Day for Federal Service. Updated for 2012 -2015.

82 U.S. Office of Personnel Management. FY 2011 Congressional Budget Justification. February 2010. 

83 Alice Lipowicz, USAJobs.gov 3.0 reboot getting fail reviews from users, Federal Computer Week, Oct. 12, 2011 and Patrick 

Thibodeau, USAjobs.gov struggles after feds take it back from Monster.com, Government IT, Oct. 21, 2011.
68 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

user expectations.

84 Prior to implementation of USAJOB 3.0, the satisfaction scores for the first 

three quarters of 2011 varied between 74 and 75. After the launch of USAJOBS 3.0, the satisfaction 

score fell to 56. Since then, satisfaction has risen steadily, although it has yet to reach the level 

attained prior to the launch of version 3.0. As of November 2012, the most recent available 

satisfaction score was 72.

Significance

USAJOBS is a widely-used website that receives over 3 million visits per week. While the content of 

the job announcement is under agency control, it is critical that OPM designs and maintains a site 

that users find navigable and functional. Satisfaction scores indicate that OPM has addressed the 

problems that arose at introduction. However, the importance of USAJOBS extends beyond 

functionality. The impression that USAJOBS makes can affect users’ perceptions of the Federal 

Government, willingness to complete the job search and application process, and comments and 

recommendations made to others. For USAJOBS 3.0 to be a complete success, user satisfaction 

should reach or exceed the levels previously attained. To that end, OPM will need to focus 

continued attention on the user experience, as well as various elements of the hiring reform 

initiative, such as job announcements and application processes and requirements, for which Federal 

agencies (rather than OPM) have primary responsibility. In addition to MSPs 2 and 5, USAJOBS 3.0

primarily involves MSP 1.

Reducing the Number of Pending Retirement Claims

For FY 2010, OPM reported a substantial increase in both retirement claims processing time and in 

the number of pending claims,85 reflecting both external factors (such as an increase in retirement 

claims driven by an aging workforce and agency restructuring) and internal factors (such as staff 

losses and the discontinuation of an unsuccessful modernization initiative).86 To rectify this situation, 

OPM instituted an approach87 with four elements (“pillars”):

 People: OPM hired staff in two functions: claims processing, performed by Legal 

Administrative Specialists (LASs); and responding to customer inquiries, performed by 

Customer Service Specialists (CSSs);

 Productivity and process improvement: OPM conducted a study of claims processing and 

made changes based on its analysis. One such change was shifting the task of gathering data 

needed for claims processing to CSSs, freeing LASs to perform more technical work; 

 Partnering with agencies: OPM trained agency benefits officers on common errors and how 

to avoid them, and provides monthly feedback on the completeness and deficiencies of the 

claims submitted for processing; and

 Progressive information technology improvements: OPM is making incremental changes to 

make greater use of technology and automation.

 

84 Commentary and analysis by Larry Freed. Making the Case for E-Gov. ForeSee Results ACSI E-Government Satisfaction 

Index (Q1 2011). April 26, 2011. Specific satisfaction scores for USAJOBS 3.0 may be accessed through the ForeSee 

website. Contact information from users may be requested prior to viewing the data.

85 U.S. Office of Personnel Management, Fiscal Year 2010 Annual Performance Report, pp. 37-39.

86 Id. and testimony of John Berry, Director, U.S. Office of Personnel Management, to the U.S. House of 

Representatives, Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy, “Back to the Basics: Is 

OPM Meeting its Mission?,” November 15, 2011.

87 U.S. Office of Personnel Management, Congressional Budget Justification and Annual Performance Plan Fiscal Year 

2013.
69 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

OPM has reduced the retirement claims backlog from 61,108 cases in January 2012 to 26,402 cases 

in December 2012.

88

Significance

OPM anticipates a continued increase in retirement claim submissions for issues related to the twoyear pay freeze, an increase in retirement eligible Federal employees, proposed changes to the 

retirement system, and agency use of Voluntary Early Retirement Authority (VERA) and Voluntary 

Separation Incentive Payments (VSIP) for workforce restructuring.

89 As we noted in our Annual 

Report for FY 2011, OPM’s ability to deliver timely and accurate benefits does not only affect 

retirees. As stated, it “indirectly affects public trust in government, agencies’ ability to recruit 

employees and restructure their workforces, and the credibility and effectiveness of OPM leadership 

in other areas.”90 It is, therefore, important that OPM continue to make progress toward reducing 

the backlog and meeting its July 2013 goal of processing 90% of the retirement claims received 

within 60 days. Reducing the number of pending retirement claims relates to MSPs 1, 3, and 5.

 

88 Retirement Processing status.

89 Based on communication with OPM representatives. 

90 U.S. Merit Systems Protection Board, Annual Report for FY 2011, April 2012, p.66.
70 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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71 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

Financial Summary

Fiscal Year 2012 Financial Summary

(dollars in thousands)

Financial Sources

Appropriations $ 40,258

Civil Service Retirement and Disability Trust Fund 2,345

 

Other reimbursements & FY 11 Carryover Funds 493

Total Financial Sources $ 43,096

Obligations Incurred

Personnel Compensation $ 24,164

Personnel Benefits 6,445

Travel of Things 34 

Travel of Persons 303

Rental Payments 3,300

Communications, Utilities, and Miscellaneous 1,026

Printing and Reproduction 121

Other Services 2,381

Supplies and Materials 161

Equipment 588

 

 

FY 11 Carryover Obligations & Other Reimbursable 303

Reimbursable Obligations 2,345

Total Obligations Incurred $ 41,171
72 Merit Systems Protection Board Annual Report for FY 2012 January 31, 2013

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