ANNUAL 

U.S. MERIT SYSTEMS PROTECTION B
The U.S. Merit Systems Protecti

Herbert E. Ellin

Maria L. Jo

Dennis M. 

Letter of Transmittal 

MERIT SYSTEMS PROTECTION BOARD 

Washington, D.C. 20419 

The Chairman 

Sirs: 

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

Reform Act of 1978 (5 U.S.C. Sec. 1209(b)), it is my honor to submit the Fifth Annual Report of the Merit Systems Protection Board. This Report covers the activities of the Board for Calendar Year 1983. 

The President of the United States The President of the Senate The Speaker of the House 

of Representatives Washington, D.C. 
Contents 

I. Introduction......................................................................................................................................................

II. Summary of 1983 .......................................................................................................................................................

III. The Board Members ......................................................................................................................................................................................

IV. Organization of the Board ..........................................................................................................................

Organization Chart ..............................................................................................................................

V. The Adjudicatory Framework..........................................................................................................................

A. Regional Offices .........................................................................................................................................

B. Office of Appeals Counsel....................................................................................................................C. Office of Administrative Law Judges .......................................................................................D. Office of General Counsel ...............................................................................................................

VI. Major Appeals Issues .....................................................................................................................................................

A. Appellate Jurisdiction Cases ..................................................................................................................

Air Traffic Controller Issues .......................................................................................................Other Significant Issues ..................................................................................................................

B. Original Jurisdiction Cases ..............................................................................................................................

Adverse Actions Against Administrative Law Judges .................................................Senior Executive Service Issues ...............................................................................................Special Counsel Initiated Actions ...........................................................................................

Stay Requests ..............................................................................................................................Requests for Corrective Action ...................................................................................Disciplinary Action Requests (non-Hatch Act) .................................................Hatch Act Disciplinary Action Requests ...............................................................

C. Requests For Reconsideration by the Office of Personnel Management..............D. Mixed Cases (involving allegations of discrimination)..........................................................E. Litigation Activity ....................................................................................................................................................F. Regulation Review .............................................................................................................................................G. Appeals Arbitration Pilot Project ................................................................................................................H. Sunshine Act Meetings ....................................................................................................................................

VII. Work of the Office of Merit Systems Review and Studies ..................................................................

Report on Reduction-In-Force in the Federal Government........................................................Report on the Significant Actions of the Office of Personnel Management, 1982 Study on MSPB Appeals Decisions for 1982 ...................................................................................................Roundtable Monograph on the RIF System..............................................................................................................
I. Introduction 

The U.S. Merit Systems Protection Board was created pursuant to Reorganization Plan No. 2 of 1978 and the Civil Se

("the Act"). An independent, quasi-judicial agency, the Board is comprised of a bipartisan three-member panel and charged the "watchdog" of the Federal merit systems. This mandate is implemented by the Board through the fulfillment of its statutory dutie

• Adjudicating employee appeals and actions brought by the Special Counsel in a fair and impartial manner; 

• Conducting special studies of the merit systems to determine whether they are free from prohibited personnel practices; • Analyzing and reporting on the significant activities of the Office of Personnel Management (OPM); and 

• Reviewing the regulations issued by OPM to determine whether they require the commission of prohibited personnel pra

implemented by an agency. 

Because the Board has broad powers in reviewing the personnel practices of OPM and the numerous government agenc

Congress took extra measures to assure that the Board would have that degree of independence necessary to properly exercise its include: 

• Guaranteeing the independence of the Board members by providing for nonrenewable terms and permit

extraordinary circumstances; 

• Providing the Board with authority to make simultaneous submissions of budgets and legislative proposals to Congress and the Pre

the need for prior approval by the Office of Management and Budget (OMB); 

• Permitting the Board to appoint personnel essentially free of approval by the Executive branch; and 

• Representing itself in the Federal courts except before the Supreme Court. 
II. Summary of 1983 

1983 was a year of historic accomplishment for the Merit Systems Protection Board, but events which took place in 198

much of the Board's activity in 1983. Briefly, those events were: 

• The air traffic controllers (ATC) strike of August 1981 that resulted in 11,125 appeals being filed in the Board's 11 regional of

• A 16% reduction in the Board's budget for FY '82; The suspension of hearings for two months and all travel for mo

regions during 1982 as a result of those budget cuts; 

• The furlough of nearly all Board employees nationwide for two weeks in July of 1982 as a result of the budget cuts. 

Yet in 1983, the Board proved that, through innovative management practices and dedicated Federal employees, a small agen

could overcome such challenges and create a renewed sense of achievement and purpose. 

In the regions, this was accomplished with careful planning and adequate funding, which resulted in the completion of a stag

17,442 appellants. By comparison, the regional offices completed approximately 7,000 cases in 1981 and over 8,300 itremendous effort, a return to the processing and adjudication of appeals in the regions within 120 days was imminent at year

At headquarters, the Office of Appeals Counsel, which drafts proposed orders for the Board based on petitions for revie

decisions, forwarded legal recommendations covering 5,001 controllers and 2,005 non-ATC government employees in 1983, a total of the 1,784 appellants in 1982. 

The Board itself issued orders involving 6,326 appellants. "By any measure," noted Board Chairman Herbert Elling

magnitude of work - both in our regional offices and in headquarters by a small agency with only 400 employees nationwide

towering proportions." 

But the Board's success extended beyond just mastering the largest appeals workload in its existence: there were major succes

virtually every area of Board operations. Among the most important were: 

• Considering and deciding appeals involving many novel legal issues; 

• Improvement of appeals management. The Board issued new internal guidelines for conducting more efficient hearings, 

conciseness of appeals decisions, and expanding and refining its case-tracking systems; 

• Introducing a new expedited appeals process in five regional offices. The expedited appeals procedure, called Appeals Arb

processing time for the more routine type of appeals to 60 days or less, as opposed to the regular 120-day time-line; 

• Initiating major new studies of the Federal personnel system and employment of new methods for examining various aspe

including the initial use of Roundtable discussions; 

Developing management skills through intensive training of the Board's senior managers; 

• Initiating and completing a review of the Board's internal controls in accordance with the Federal Manager's Financial In

agency personnel management policies, procedures and operations; 

• Reorganizing the Office of Administration and creating in its place the Office of the Comptroller to better direct and coordin

Managing Director the financial and administrative functions, including; general administrative, office support serviceinternal audit and control. The reorganization also created independent offices of Personnel and Equal Employment that repoDirector. 
"1983," noted Chairman Ellingwood, "was an extremely important year for the Board, in which the Board was able to refo

functions, away from the tremendous distractions of the previous year caused by the severe budget problems. 

The Board was able to accomplish in 1983 an achievement rare in the history of adjudicatory agencies: to come back from an overw

appeals back- log, with very limited resources, to a position of being very nearly current in all aspects in a very short period of time." 

New York Re

gional Office staff t

work to pose for a group pictureOffice adjudicated 838 Federa

Secretary Mary B. Green takRichard Redenius. 

Members of the Boston Regional Office also moved mountains of work in 1983, adjudicating over 672 appeals. 
III. The Board Members 

The three Board members are appointed by the President with the advice and consent of the Senate. In order to ensure the in

designation of any member as Chairman must be approved by the Senate; Members serve a seven-year term and may not be 

be removed only under the higher than ordinary standard of inefficiency, neglect of duty, or malfeasance in office. 

Herbert E. Ellingwood was appointed by President Reagan to be the Board's second Ch

At the time of his appointment, Ellingwood was serving as Deputy Counsel to the Presideposition, he was in private law practice with the firm of Caldwell & Toms in Sacramento, CEllingwood was Special Assistant Attorney General for California and was Legal Affairs Sfrom 1969 to 1974. 

Maria L. Johnson was nominated by President Reagan to the Board on March 18, 1983, and was confirmed by the Senate 

on May 6 to the seat formerly held by Ersa H. Poston. Johnson was designated Vice-Chair on September 19, 1983. At the time of her appointment, she was a commercial loan officer with the Security National Bank in Anchorage, Alaska. She has served as a Legal Assistant to the District of Columbia Department of Human Resources in Washington, D.C.; and as an Associate Attorney with the firm of Lambert, Griffin & McGovern in Washington, D.C. 
Dennis M. Devaney was nominated by President Reagan to be Member of the Board on A

confirmed by the Senate on August 20, 1982. At the time of his appointment, Devaney was in prWashington, D.C. with the firm of Tighe, Curhan and Piliero. From 1977 to 1979, Counsel for the Food Marketing Institute and from 1975 to 1977, he served as Assistant G

the U.S. Brewers Association. 
IV. Organization of the Board 

The Board is comprised of a number of operating offices which carry out the duties of the organization. While 

responsibility for implementing its statutory functions, the Chairman, as Chief Executive Officer, is vested with responsibility 

Authority for the day-to-day management of the Board, both in headquarters and its eleven regional offices, is delegated to th

Chairman. 

The Assistant Managing Director for Regional Operations has responsibility for the operation of the regional offices 

decisions of those offices. 

The Assistant Managing Director for Management is responsible for formulating, planning, and coordinating imp

procedures, administration and management of the agency. 

The Office of General Counsel provides legal counsel to the Board and offices of the Board, and represents it in all 

before the Supreme Court. It also participates in the review of Office of Personnel Management regulations. 

The Office of Appeals Counsel prepares draft opinions and orders for the Board based upon its analysis of both petitions 

rendered in the regions, and the records of cases reopened by the Board on its own motion. 

The Office of Legislative Counsel has dual responsibility for the agency's Congressional affairs and public infor

responding to Congressional inquiries, preparing Board testimony and legislative comments, providing information to the 

the agency with audio-visual and graphic arts services and preparing various Board publications. 

The Office of Administrative Law Judges adjudicates cases under the Hatch Political Activities Act, hears discip

removals of administrative law judges and, upon assignment from the Board, conducts hearings in sensitive and complex appinitiated by the Special Counsel. This office also has jurisdiction over, and issues orders in response to, motions for subpoeBoard's regional offices. 

The Office of Merit Systems Review and Studies carries out the Board's reviews of Government wide personnel policies an

they are free from prohibited personnel practices and achieve results consistent with the statutory merit system principles. The o

oversight reviews of OPM and participates in the review of OPM-issued rules and regulations. The office's findings are rePresident and made available to the public. 

The Office of the Secretary is the central processing point for all petitions to the Board. The Board has delegated to the 

establishing and controlling dockets on pending cases; ruling on certain procedural matters, relating to case adjudication; issuinBoard orders and opinions; making initial rulings on Freedom of Information and Privacy Act requesting; and authenticating offic

Equal Employment Opportunity Commission and other interested parties and organizations. The Secretary also keeps thmeetings; makes arrangements for hearings before the full Board; oversees the Board's law library; operates the public documents 

the Board on caseload and case-processing statistics; and publishes the Board's legal publications. 

The Office of the Comptroller was established in 1983, and includes the functions previously performed by the Offices of A

Audit and Control. The Comptroller directs and coordinates for the Chairman and Managing Director the financial and ad mini

includes divisions for: Contracts and Materiel Management; Budget and Finance, and Internal Audit and Control . 
The Office of Personnel is responsible for 

managing the internal personnel programs of the Board. The Office provides personnel assistance to management, employees, and applicants through two divisions: the Programs Division and the Operations Division. 

The Office of Equal Employment develops and 

monitors the implementation of all of the Board's equal employment and equal employment opportunity programs and policies. This includes the establishment and maintenance of an agencywide affirmative action program and the evaluation of the sufficiency of the agency's programs and procedures on a continuing basis. 

The Special Counsel 

The Office of Special Counsel has independent 

investigatory and prosecutorial authority and is responsible for bringing certain actions before the Board. The Special Counsel is required by 5 U.S.C. 1206 (m) to submit its own annual report to the Congress; therefore, this report will not address Special Counsel activities except as they pertain to Board orders and decisions. 
V. The Adjudicatory Framework 

Adjudication of appeals is by far the largest and most time consuming activity of the Board and consequently utilizes the gre

In 1983, because of the large number of ATC cases, and the resultant backlog of non-ATC cases, the Board's workload was even more c

Four Board offices besides the Board itself are directly involved in the adjudicatory work: the regional offices, the Office of Ap

General Counsel and the Office of Administrative Law Judges. 

A. Regional Offices 

Adjudication of cases generally begins with the filing of an appeal in one of the Board's 11 regional offices. Entering 1983, the reg

hearings of all air traffic controllers' appeals and were concentrating on writing and issuing the remaining decisions. From Jan

1983, the regional offices issued initial decisions on the remaining 7,700 air traffic controllers' appeals. 

Prior to receipt of the ATC appeals the regional offices maintained a caseload of between 1,800 and 2,000 appeals and 

issuing approximately 95% of all appeals within the Board's 120-day standards. However, with the influx of the ATC cases, the region

appeals pending at the end of February, and of those, 2,656 appeals had been pending in excess of 120 days. The regional offiadjudicating all appeals which had been pending more than 120 days and also returning to their practice of deciding virtually all new 

By year's end, the regional offices had adjudicated 10,480 appeals in addition to the 7,700 ATC appeals, and had reduced th

to only 2,205. In addition, the regional offices had reduced the number of over-age cases from over 2,600 to 561 while processing all days. 

B. Office of Appeals Counsel 

Decisions issued in the regions do not become final for 35 days. During that time either party, the Office of Personnel Ma

Counsel can petition the Board to review the "initial" decision, or the Board can review it on its own initiative. 

The petitions for review (PFR's) are received by the Secretary of the Board, who, after taking appropriate measures to ensure a ce

case to the Office of Appeals Counsel (OAC), which reviews the case record and prepares draft final orders for the Board's consideratio

The OAC's workload also reflected the higher work levels seen throughout the Board. In 1983, the Office of Appeals Counsel 

7,006 appellants. Of those, 5,001 were air traffic controllers. This represented a very significant workload increase when cprocessed in 1982. 
C. Office of Administrative Law Judges 

The Office of the Administrative Law Judges (OALJ), as already indicated, adjudicates certain special categories of appeals

removals as well as the more complex or sensitive cases assigned to it by the Board and issues, orders and motions involving s

Decisions of the Board's Administrative Law Judges in original jurisdiction (i.e., all cases not involving appeals from agency 

decisions, but are recommended decisions to the full Board for final decision. 

Like the previous year, 1983 was an exceptionally busy year for OALJ. With the addition of a third administrative law judge, the 

of 663 motions for subpoenas and discovery and issued 44 dec

issues. 

The office also handled a number of cases including (a) sensiti

regions; (b) appeals of employees of MSPB; and (c) removals of Sebers, as well as the appeals of 152 air traffic controllers assigned to th

D. Office of General Counsel 

As legal advisor to the Board, the Office of General Counsel (O

legal services to the Board and its offices. Areas in which OGC mato the Board's overall mission in 1983 include: original jurisdictiocases involving designated issues; litigation; cases with equal esues, referred to as "mixed cases"; regulation reviews affecting t

management relations; government ethics obligations and agency 

ernment in the Sunshine Act, the Freedom of Information Act and the 

In addition, the Office of General Counsel was frequently call

on precedential and significant legal issues arising in employee appeals. Among other issues, OGC prepared advisory mequestions concerning such issues as off-duty misconduct, reduction-in-force, collateral estoppel, survival of claims, attoretirement. 

In addition to preparing advisory memoranda on these issues, OGC also prepares draft final orders upon request. In 

offices of the Board, assisted in adjudicating thousands of ATC appeals. A senior OGC attorney was designated as Special Prthe procedural motions those cases entailed. Several OGC attorneys contributed to the overall Board effort by draftBoard on petitions for review.
VI. Major Appeals Issues 

The Board has a major responsibility to thoroughly examine issues that come before it in appeals and to provide agen

presiding officials with precedent-setting opinions applying and interpreting the provisions of the Civil Service Reform Act. 

This year, as in previous years, the Board issued a number of decisions addressing and interpreting subjects of sign

precedent for future appeals. What follows is a brief discussion of the most significant decisions issued by the Board in 1983, 

important recommended decisions sent to the Board by its Office of Administrative Law Judges. 

A. Appellate Jurisdiction Cases M o s t c a s e s c o m i n g t o t h e B o a r d i n Washington stem from requests by either an appellant or an agency in the form examine a presiding official's decision. The PFR's must be based on specific legal grounds, not mere disagreement with a regbelow are summations of some of the most significant appeals decisions. Air Traffic Controllers Issues Adverse inference

Adams v. Dept. of Transportation, NY075281F0424 (4-25-83). The Board held that the presiding official properly drew an adverse 

because of his failure to attempt to rebut the charges on which his removal was based. The Board ruled that the inference wacontained independent probative evidence in support of the charges. 

Command influence

Anderson v. Dept. of Transportation, SL075281F0347 (4-25-83). The Board ruled that an appellant's claim of "com

improperly resulted in an adverse action against him, may be established by showing that any statement or instruction by an Execthe individual agency official, who must propose or decide whether to effect the adverse action, of the requisite authority 

that general statements of the penalty to be imposed by the agency for specific prohibited conduct, as in this case, are not such a claim. 

Harmful Error 

Baracco v. Dept. of Transportation, DC075281F0895 (4-25-83). The Board held that an agency's failure to afford an e

required by statute for response to a proposed adverse action does not constitute a reversible error per se. The Board found t

the procedural error was harmful under 5 U.S.C. 7701 (e) (2) (A) and 5 C.F.R. 1201.56 (c) (3) by preponderant e
Employee Responsibility

Campbell v. Dept. of Transportation, DE075281F0674 (4-25-83). The Board found that the futility rule in private sector lab

employees from engaging in the futile act of notifying an employer of intent to abandon a strike and desire to retur

in the public sector where striking is prohibited by Federal statute. The Board held that, despite any confusion aemployment status which may have been caused by agency or other Administration announcements, it is incumbent upon the empagency of their readiness and desire to return to work and to inquire about their individual employment status. The Board 

parte communications between a presiding official and only one party to an appeal do not violate Board regulations if th

in nature. 

Constructive suspension 

Chance v. Dept. of Transportation, SL075281F0621 (9-

20-83). The Board held that the presiding official properly considered, sua sponte, the issue of constructive 

suspension during the removal notice period, and ordered cancellation of both the removal and the suspension upon finding that the agency did not prove the charges on which the removal action was based. The Board found that the presiding official's raising of the constructive suspension claim sua 

sponte was a proper exercise of his remedial 

powers to afford the appellant full relief from the improper adverse action. 

Suspension jurisdiction

Martel v. Dept. of Transportation, BN075281F0558 (4-

25-83). The Board ruled that an appellant may establish the Board's jurisdictior over his claim of suspension for more than 14 days during the notice 

period of proposed removal for strike participation, by proving that he was ready, willing and able tc return to work during the time period in question. The Board held that this would require appellant to show that he contacted an agency official with decision-making authority (in person or otherwise) to communicate unequivocally his availability and his desire to return to work. 

The Board considers testimony from Special Counsel K. William Oinvolving Hatch Act issues. 
Leave cancellation

McPartland v. Dept. of Transportation, DA075281F1018 (2-8-83). The Board found that the agency properl

previously approved annual leave under the pertinent collective bargaining agreement provision which prohibited c

approved leave, except for an "operational emergency." The Board interpreted the provision as requiring only the existence oof an operational emergency, like the nationwide strike involved here, before the agency could cancel the leave prospectively o

the emergency. 

Consolidation 

Noa v. Dept. of Transportation, NY075281F0697 (4-25-83). The Board found that multiple appeals involving substant

law and operative facts with no apparent conflict of interest, the same legal representative, a n d s u b s t a n t i a l l y t h e s consolidated for purposes of a hearing and an initial decision. The Board noted that the consolidation in this case resulted in a savinall parties, and that the complaining appellants showed no ensuing prejudice to their substantive rights. The Board further demonstrate the continuance of a strike on a particular date, the agency need not necessarily present evidence that thecertain number of co-workers, mutually withholding their services prior to their deadline shifts, with whom one app

interact. 

Waiving of filing deadline 

Smith v. Dept

DE075281F0337 (8-24-83). cause to waive the regulapetition for appeal of a suspension during the rethe context of the apperemoval for strike participatileave. The Board made thisidering the appellant's suspension, the unique circunationwide strike, the agsuspension claim was raised c l o s e d , th e agency's oppclaim, and the agency's failuresulting from adjudication actions simultaneously. 

Members of the Air Traffic Controller Special Task Force are honored for their tremendous effort in helping process over 11,000 appeals received at MSPB. 
Other Significant Issues 

Employee appointmentTravaglini v. Education,DC07528110641, 

(11-2-83). The Board held that when an employee shows that he has been appointed to a position and has commenced duty upon certification by OPM that he is eligible to do so, and when the appointment is subsequently found to be improper, the individual is an "employee" within 5 U.S.C. 7511 (a) unless the appointment was made in violation of an absolute statutory prohibition or the individual has committed fraud regarding the appointment. 

Warnings and Penalties Gober v. Department of Navy,SF07528110693, 

(6-7-83). The Boardheld that there was no rule or regulation which precluded an agency from using nondisciplinary warnings or counseling as a basis for imposing an enhanced penalty. 

Reinstatement after injury Philadelphia Regional Director Lonnie L. Crawford, Jr. listens intently durin

Cox v. seminar. International Trade Commission, DCO3538010204ADD, (6-14-83). The Board found that an employee who recovers from a compensable injury within one year has an absolute right to immediate restoration. Disparate penalty Filip v. Veterans Administration, CH07528110504, (6-1-83). The Board held that a penalty cannot be sustained when the app

other employees were disciplined less harshly for the same offense and the agency has not shown a legitimate reason for the d

RIFs and bargaining agreements

Sirkin v. Department of Labor,DCO3518210509, (8-24-83). The Board held that, consistent with the terms of 5 U.S.C. 7121(a), wbargaining agreement does not specifically exclude a reduction-in-force action, such an action is covered by the agreement anunder the negotiated grievance procedure. Record accuracy and removal Ramseur v. Navy, PH07528110620, (8-9-83). The Board held that a review of the past record in a removal case requires the presdetermine whether the past record was "clearly erroneous." 
Withdrawal of resignation 

Almon, Keller, Kuntz, Neighbors v. NASA, AT07528111048, (8-9-83). The Board held that an agency must show a valid re

timely request to withdraw a resignation and that the Board will only sustain an agency's refusal when such a decision is supported b

Stay of appeal pending investigation Green v. U.S. Postal Service, PH07528310352, (9-27-83). The Board held that an appellant who had been removed for alleged crim

to an indefinite stay pending the results of an investigation by the U.S. attorney's office linked to the same charge. 

Handicap accomodation Ignacio v. U.S. Postal Service, SF07528110438, (9-16-83). The Board held that the 1973 Rehabilitation Act and EEOC regulation

accommodation of physical handicap do not require that the agency consider reassignment of the handicapped individual to anoth

determined that he or she could no longer perform the duties of his or her official position. Summary judgement and presiding of ficials McKenzie v. Department of Interior, DE04328210002, (8-24-83). The Board held that when an appellant moves for judgement 

the agency's case-in-chief, the presiding judgement official has the authority under 5 C.F.R. and 1201.55(b) to decide wsupported by the requisite degree of proof under 5 U.S.C. 7701 (c). If the agency has established an unimpeached prima fa

motion must be denied. 

Privacy of investigatory files 

In In Re Subpoena Addressed To The Office of Special Counsel, (Martin) HQ12008310019, the Board held that the Special Cou"subpoena duces tecum" but that documents prepared by or for attorneys in the Office of Special Counsel during investigation in proceeding were protected from disclosure by the "work product" privilege. The Special Counsel was ordered to produce privileged category and to produce for "in camera" inspection by the Board any documents insufficiently described in the claim B. Original Jurisdiction Cases 

Cases under the Board's original jurisdiction include appeals of disciplinary actions against administrative law judges, and request

Senior Executive Service (SES) employees. 

Adverse Actions Against Administrative Law Judges 

An administrative law judge may not be subjected to an adverse action unless, after an opportunity for a hearing, the employing agen

on the record, for that action. Nine agency requests to discipline administrative law judges were brought to the Board in 1983. TOffice of Administrative Law Judges (OALJ) where hearings are held and recommended decisions are issued for the Board's considerati

In 1983, the Board considered several major legal issues which are of significant decisional importance. 
In HHS v. Goodman, HQ75218210015, the Board Members held oral argument and considered, among others, the following issue o

cause" for removal be established through proof of unacceptable low productivity? No previous final administrative or judicial decisi

performance-based reasons could be used as a basis for initiating an adverse action against an administrative law judge. 

In this case, which has decided in early 1984, the Board considered whether the independence granted to ALJ's by the Adm

immunized them from disciplinary actions for poor performance. While agencies cannot interfere with, or base their actions uinterfere with, an ALJ's decisional independence, the Board determined that the coverage of section 7521 was not limited to miscondu

In HHS v. Davis, HQ75218210026 the Board expanded upon its footnote statement in Goodman that the efficiency of the service s

Section 7521 cases. The Board held that good cause is a separate and distinct standard. Based upon the nature and effect of the c

Board adopted the Recommended Decision determining that respondent's lewd and lascivious conduct did constitute good cause. 

In HHS v. Brennan, HQ7521820010, and HHS v. Manion, HQ75218210008 the issues were related to those in Goodm

considered the issue of whether an ALJ may refuse to comply with instructions which arguably interfere with his ability to hold furender complete and impartial decisions. In its decision, the Board addressed the extent to which ALJ's are subject to manageme

Senior Executive Service Issues 

In Gaines v. Department of Housing and Urban Development, HQ12018110066, the Board addressed the questions of inform

probationary SES employees, and availability of redress when non-statutory procedures are denied. Gaines, a probationary SES 

performance deficiencies. She sought an informal hearing under 5 U.S.C. 3592. The administrative law judge dismissed her 

the legislative history established that probationary employees were not entitled to an informal hearing. The Board affirmed the clarification. The Board further held that SES members denied procedures prescribed by OPM but not provided by the statute d

Board. 

Special Counsel Initiated Actions 

The majority of cases heard by the Board under its original jurisdiction authority are actions brought by the Special Co

increased sharply this year and can generally be divided into four types: (1) requests for stays of agency personnel actioprohibited personnel practices; (2) requests for corrective actions; (3) requests for disciplinary actions against federal employees; and (4

Regional Directors William Carroll of Boston, A. Luis Lucero, San FrCrawford, Jr., Philadelphia, participate in discussion of regional office managem
Stay Requests 

Under the provisions of 5 U.S.C. §1208(a), the Special Counsel may request a stay of any personnel action for 15 cale

Counsel determines that there are reasonable grounds to believe that the personnel action was taken as a result of a prohibiteBoard member may order such a stay unless he or she determines that, under the facts and circumstances involveappropriate. If no action is taken on the request within three working days after it is filed by the Special Counsel, the stay becomof law. Under 5 U.S.C. §1208(b), upon further request of the Special Counsel, a Board member may extend the originaadditional days. 

Under 5 U.S.C. §1208(c), the Board may extend the period of a stay if a majority of the Board concurs in the determinatio

only after an opportunity is provided for comment by the agency involved. 

The Board considered requests for stays of personnel actions in a number of cases in 1983. Among them were: Special Counsel v. Department of Defense (DeCarlo), HQ12088210049. The Special Counsel requested stays of the proposed 

and demotion of an assistant principal in the Department of Defense Dependent Schools. The Special Counsel alleged the agency employee's exercise of appeal rights in a discrimination complaint and was in violation of 5 U.S.C. §2302(b) (1) and (9). The Bto 5 U.S.C. §1208(a), and (b) and 3 stays pursuant to 1208(c). 

Special Counsel v. Department of Energy (Savitz), HQ12088210053. A career appointee in the Senior Executive Servic

removed for refusing a directed geographic reassignment. The Special Counsel alleged that the reassignment was to induce 

her removal, thus constituting a constructive discharge in violation of 5 U.S.C. §2302(b) (11). After granting stays pursuant to §year, in 1983 the Board denied a (c) stay request stating that there were not reasonable grounds to believe that the reassignment wa

Special Counsel v. Department of Housing a n d U r b a n D e v e l o p m e n t (Lesht), 

HQ1208831002. The Special Counsel requested stays of the proposed geographic reassignmPersonnel in the HUD Chicago Regional Office to a position in HUD's Washington, D.CCounsel alleged that the reassignment was a reprisal for providing information ttestimony in a proceeding before the Board and therefore in violation of 5 U.S.C. §§2302(b) (blowing"), and 2302(b) (10) (discrimination for conduct not affecting performance). The Board gU.S.C. §1208(a) and (b) and two stays pursuant to §1208(c). 

Special Counsel v. Department of Defense (Spanton), HQ12088310009. The Special C

the proposed geographic reassignment of George R. Spanton from his position of Resident AuditAgency (DCAA), West Palm Beach, Florida, with audit responsibility for Pratt & Wspecified GM-14 auditor positions outside the DCAA Atlanta region. The Special reassignment was in reprisal for his protected disclosures to the press. 5 U.S.0 §"whistleblowing") and (b) (10) (discrimination for conduct not affecting performance). The BoarU.S.C. §1208(a) and (b). 

D.C. Regional Director P.J. Winzer considers comments made during a management retreat.
Requests for Corrective Action 

Under 5 U.S.C. §1206(c) (1) (A), if after investigation the Special Counsel determines there are reasonable grounds to believe 

practice has occurred, exists, or is to be taken, which requires corrective action, the Special Counsel may recommend to the agencbe taken. 

If the agency does not take the recommended corrective action after a reasonable period, pursuant to 5 U.S.C. 1206(c) (1) (B), the 

Board to consider the matter. After opportunity for agency and OPM comment, the Board may then order such corrective action The Board took final action in the following corrective action matters in 1983: 

Special Counsel v. Department of Army (Mortensen) HQ12068110017. The Special Counsel charged that the proposed re

prohibited personnel practice in violation of 5 U.S.C. §2302(b) (1), (9) and (11). The removal was based on three charges: a

performance, and c) EEO abuse. After a discussion initiated by the Office of Special Counsel, an Army supervisor deleted the Einitiative. In denying the request for corrective action, the Board held that, although the Special Counsel had established that the propsed removal, the agency had shown that it would have proposed the removal regardless of the protected conduct, because of thand work performance deficiencies without regard to her EEO activities. 

Disciplinary Action (Non-Hatch Act) 

Under 5 U.S.C. §1206(g), if, following an investigation, the Special Counsel determines that a disciplinary action sho

employee who is not a Presidential appointee, a written complaint is prepared, containing that determination along with a statempresented to the Board for action. Any employee against whom such a complaint has been presented is entitled to certain p§1207, including the right to a hearing on the record. 

A final order of the Board in such an action may impose a disciplinary penalty against the employee including removal, red

from Federal employment for a period not to exceed five years, suspension, reprimand or the assessment of a civil penalty not to 

case of this type in 1983, the Board assessed a monetary civil penalty for the first time. 

Special Counsel v. Verrot, HQ12068310014. The Special Counsel alleged that Respondent had committed a prohibited personn

individual to withdraw from competition for the purpose of improving the prospects of another for appointment to the announced positio

A Joint Motion for Approval of Settlement was received by the Administrative Law Judge before commencement of the hearing

respondent admitted the conduct and the Special Counsel recommended a 60-day suspension and $1,000 civil penalty. The Boarincluding the suspension and fine. 

Hatch Act Disciplinary Action Requests 

Under 5 U.S.C. Chapters 15 and 73, the Special Counsel is authorized to investigate political activities by certain 

employees, federal employees, and employees of the District of Columbia government. Following such investigations, if the Specis a basis for doing so, he may file a complaint with the Board seeking certain disciplinary actions against the employee. 

The following Board decisions of 1983 were in response to Hatch Act cases involving federal or state employees. Special Counsel v. Dukes, HQ120600020. This case came to the Board from one of its Administrative Law Judges, who recomm

After hearing oral arguments on the appropriateness of imposing a penalty less than the statutory minimum, the full 

Counsel's motion to dismiss made upon jurisdictional and constitutional grounds. Instead, the Board found that the Special Cdiscretion to seek to withdraw or dismiss actions he has brought. The Board, therefore, treated his motion as one fowhen no objection was received, dismissed the complaint. 
Special Counsel v. Morgan, HQ01268210028. In this case the Board confirmed the holding in its remand order in Duke

a violation of the Act and determined unanimously that removal was not warranted, the statute required a minsuspension. The Board held on stipulated facts that Morgan had violated the Act, concluded that the violation did not warthe minimum penalty of 30 days set out in a settlement agreement. The Board denied Morgan's separate request that he be allowed to on days selected by his supervisor, holding that the statute limited its authority to impose suspensions to consecutive days from the legislative history of the amendment permitting suspension rather than removal, that Congress did not authorizdiscretion of the type requested by Morgan. 

Special Counsel v. Biggs, HQ12068210033. The Board held that the Special Counsel had failed to prove Biggs violate

the complaint. Biggs had paid a nominal sum to have a letter to the editor published expressing his independent vioffice. 

Special Counsel v. Mary Lou Daniel,HQ12068210031. The Board held on stipulated facts that Daniel violated 5 U.S.C. §1502 

running for partisan elective office. She was on unpaid leave of absence from her full-time employment by the Pittsburgh Departm

time of the violation. She was subject to chapter 15 because her job with the local agency was financed at least in part by federathat the fact that she was on unpaid leave of absence was immaterial because the legislative history showed that her partisan candid

she resigned. The stipulated facts showed her violation was knowing, serious, and conspicuous. The Special Counsel had adviviolated the Act and that her arguments were invalid. The Board denied her employer's request for mitigation of the remoheld that the seriousness of her violation was the sole factor that the Board could consider under section 1505(2). 

Board Chairman Herbert E. Ellingwood helps move one of the last air traffic controller appeals files after its adjudication h
Special Counsel v. Willett, H

found, based upon a seWillett, a Federal empl7324(a) (2) by running fRepublican Party Commresponsibilities, met infrinfluence. Under the circumthat removal was not wathat the 60-day suspension appropriate. 

Special Counse

HQ12068210029. The Bviolated 5 U.S.C. 7324(a) by party conventions, but thflagrant, willful, or of wideresigned immediately upactivities were not permitteremoval was not warranted b60 days. The Board impos30-day penalty because of with the Act, the natbecause at the time of thcounselor and advisor to othin the area of political activit

A few of the members of the Chicago Regional Office take a break from the rigors of office life. The staff processed a total of 3,471 cases of 1983. 

Special Counsel v. West, HQ12068210030. The Board found West had violated section 7324(a) (2) by participatin

campaign by aiding a friend's candidacy. The Board concluded that removal was not warranted, but imposed a 60-day suspebecause West was aware of the Act and was testing its limits when he violated it. 

C. Requests for Reconsideration by the Office of Personnel Management 

As part of its appellate jurisdiction, the Board may accept from the Office of Personnel Management requests for reconsid

Under 5 U.S.C. §7703(d) the Director of OPM may petition the Board to reconsider a final order if he determines in his discreinterpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a subservice law, rule, regulation, or policy directive. Under the law, the Director must either intervene in a Board procereconsideration and have it denied before he can file a petition for review of a Board order in court. 
One group of significant decisions issued in 1983 interpreted 5 U.S.C. §7703(d), the CSRA provision governing petitions 

Board's final decisions by the OPM Director. 

Standards for consideration In the lead decision, York v. U.S. Postal Service, PH07528090159, the Board, on remand from the D.C. C ir cu i t C o u r t o f A standards which determine whether such petitions will be considered. The Board held that when OPM has not intervened in an apto consideration of his contention that the Board's decision in the case has misinterpreted a civil service law or regulation for whicYork, the Board concluded that Congress did not intend for the Board to review the Director's determination that the impact of the alle

the administration of the civil service would be substantial. 

Must be precedent setting However, in Seibel v. Air Force,AT07528010033, and Grant v.Department of the Treasury, AT07528110699, the Board made cl

be heard does not apply to hoard orders with no precedential value. The Board noted that the alleged legal error can have no impquestion when the challenged decision merely denies review and leaves in effect the initial decision in the case, since initial decision

Reconsideration not automatic

In another decision, Portlock v. Veterans Administration,CH07528090051, the Board declined to entertain OPM's request for recright under section 7703(d) because OPM's challenge to the Board's decision was not based on an alleged misinterpretatilaw. Must be timely Finally, in Johnson v. Department of Transportation, PH075281F0845, the Board ruled that OPM's petitions under section 7703

30 days of OPM's receipt of the challenged decision. 

D. Mixed Cases (involving allegations of discrimination) 

"Mixed cases" are those cases that include one or more allegations of discrimination raised in connection with an action that 

the Board. Under the Civil Service Reform Act, the Board has the authority to adjudicate these "mixed cases" and decide both tthe discrimination issue. Since the creation of the Board, hundreds of mixed case appeals have been adjudicated. 

Following a Board decision in a mixed case, an appellant may petition the Equal Employment Opportunity Commission 

event the EEOC disagrees with the Board decision, the case may be remanded to the Board for further deliberation. The EEOC rthese cases during 1983. 

The most significant issues relating to mixed cases involve the extent of Federal agency responsibility to make reasonable accomodhandicapped individual under the Rehabilitation Act. Questions concerning handicapped employees were the major issue in 9 oremanded to the Board by the EEOC during 1983. Because issues involving the Rehabilitation Act have not been settled by the coare a broad range of matters requiring analysis on a case-by-case basis, both the MSPB and the EEOC are carefully reviewing these ca standard to be used as an administrative precedent in subsequent cases. 
In order to ensure efficient processing of mixed cases, the Board has established a Merit Systems Protection Board-Equa

Commission Liaison in the Office of General Counsel. The Board's liaison function has included coordination with EEOC on seestablishing standard procedures for the transmittal of case records between the agencies, coordination on the drafting of agencies, exchange of information regarding relevant court cases, and ongoing discussion of substantive legal issues. 

EEO Director John H. Taylor receives his 3E years of service pin from Vice Chair Maria L Johnson. 
E. Litigation Activity 

During the year, the Board's litigation activity, which is handled by the Office of General Counsel, shifted to matters of substanc

There also was continuing litigation in the district courts contesting the Board's case processing procedures, but many of tharea were successfully resolved in the Board's favor in litigation related to the air traffic controller cases. District Court work

routine, while many questions remained in appellate litigation. 

In the appellate courts the Board filed briefs and presented oral argument on substantive issues in a number of cases in various 

with off-duty misconduct cases, jurisdiction and attorney fees issues in disability retirement cases, and other issues. The Supreme Court d

Department of Transportation, a case in which the Second Circuit upheld the Board's application of a presumption that the emplo

misconduct had an impact on his employment as an air traffic controller. 

In a series of important decisions, the Federal Circuit ruled that it lacks jurisdiction to review disability retirement cases and that attorn

in such cases. These decisions make the Board the forum of last resort in disability cases. The Board intervened in two of the mcontroller cases in the Federal Circuit involving issues of mitigation and coercion. OGC closely monitored the positions taken bcases to ensure that the Board's decisions were properly defended. 

Staff in the Office of the Secrfor docketing, filing, and respnumbers of appeals, orders and Board. 
In a case which was briefed and argued by OGC in 1983, Hopkins v. Department of Justice, the Federal Circuit is consid

the proper respondent in cases involving issues limited to questions of the Board's jurisdiction or application of its procedures. Ththat the Civil Service Reform Act should be read to require the Board and not the employing agency to be the respondent in cases issued in early 1984, the court determined that the Board is the proper respondent and will appear in the Federal Circuit routinely in also continue tc appear selectively as an intervenor in cases involving substantive issues of particular importance. The Hopkins decision w

be the named respondent in a number of cases assures the Board a strong voice in the judicial arena in its continuing effort to fulfill itlitigation. 

In one of the most significant decisions of the Federal Circuit on a procedural matter, the Court held that service of decisions on 

to appellants personal- ly, is lawful. This decision gave judicial approval to the practice followed by the regiona offices in the air tr

v. United States, 717 F.2d 1343 (Fed. Cir. 1983) 

In a noteworthy district court decision, the D.C. District Court ruled that it lacked jurisdiction to enjoin Board proceedings. 

the Board and accepted by a number of district courts in the litigation involving the Board's processing brought throughout the couAssociation of Administrative Law Judges, Inc. v. Schweiker, et al., No. 83-0124 (D.D.C. March 14, 1983). 

During the year the Office of General Counsel litigation team worked closely with other offices of the Board to develop 

to protect the Board's case processing policies. This was particularly important while it cleared away the ATC cases and shifted returning to normal operations. 

F. Regulation Review 

The Board has the responsibility for reviewing regulations issued by the Office of Personnel Management that upon imp

commission of prohibited personnel practices either on their face or through implementation. Support for this review is provided by thReview and Studies and OGC. 

In Joseph v. Devine, the Board was asked in 1983 to invalidate an OPM rule which limited the scope of grievable actions. 

noncompetitive promotion decisions from coverage in an agency grievance system. The Board invalidated the rule 

implementation of this rule by the IRS. 

In McDiarmid v. Fish and Wildlife Service, Department of Interior, the Board was asked to grant a request for review of the agency

merit pay and performance appraisal regulations. The issue involved is whether the agency has, as alleged, improperly utilized 

evaluating and rating employee performance. The Board determined in early 1984 that it would review the agency's implementation of 

G. Appeals Arbitration Pilot Project 

In March, the Board launched a comprehensive alternative appeals procedure in the Chicago, San Francisco, Seattle 

program was expanded to include the Dallas region on October 1. 

The goals of the pilot project providing an alternative process, called "Appeals Arbitration," are to determine whether a

procedure, characterized by innovative pleadings and greater involvement by the presiding official, will contribute to the effparties' resources in an appeal while maintaining the integrity of Board law and providing due process protections to the parti
Highlights of the expedited alternative process include: the issuance of an initial decision at the regional level in 60 days, a ti

the formal process; the involvement of the presiding official, called an appeals arbitrator, in establishing an environment conducive to issues pursuant to the request and agreement of both parties; and reliance on a single, mutually submitted pleading entitled the Joint A

The types of appeals which may be brought under the process are relatively simple, routine cases which are legally non-

themselves are non-presedential, but they must be based on existing Board decisions. 

At the close of the year, the results of confidential surveys administered by an outside evaluator underscored the acceptability of 

The pilot will continue until at least September of 1984, at which time the Board will consider adopting the program throughout the r

H. Sunshine Act Meetings 

Under the Government in the Sunshine Act, 5 U.S.C. 552b the Board is required to give notice to the public of all meetings 

in the disposition of official Board business. At least one week prior to the meeting, notice is given by publication in the Feplace, and subject of the meeting and whether the meeting is to be opened or closed. 

Where a meeting will involve a discussion or resolution of appeals before the Board, the meeting may be closed to the publ

responsibility of the Office of General Counsel to determine and certify that the meeting is properly closed and to state the reason fthe requirements of the Act, the certification, together with the minutes of the meeting and a copy of the Federal Register noBoard's official records maintained by the Office of the Secretary. 

During 1983, the Board held seven "Sunshine" meetings. Of these, two were open and five were determined to be properly closed un

Act. 

At these meetings the Board primarily considered cases presenting novel or complex issues. In addition, the Board has, on occasi

provide expeditious treatment of other non-complex cases. 
VII. Work of the Office of Merit Systems Review and Studies 

Under 5 U.S.C. 1205(a) (3) and 1209(b) the Board is required to conduct special studies to determine if the merit system is bei

review the significant actions of OPM, and to report its findings to the President and Congress. MSRS has responsibility for performing 

In the spring of 1983, a new director was assigned to MSRS and the office began to acquire additional staff and to estaIn addition to conducting survey research, the MSRS research agenda was expanded to include other study methodologies such 

reviews at selected agencies. Two roundtables, one on reductions-in-force (RIF) and the other on OPM significant actions were spoinformatior on the views of policymakers toward these subject areas. In 1983 MSRS completed several major reports which are descr

Report on Reduction-In-Force In The Federal Government, 1981: What Happened and Opportunities For ImprovemenThis study reviewed employee perceptions of the 1981 RIF practices to determine if the RIFE were conducted in accordance with the 

the commission of prohibited personnel practices. The data for this study were based on on-site interviews with those knprocess anc Government-wide surveys of 2,600 Federal employees and 800 senior Federal personnel officials. The study reported: 

• the RIF system might be improved in the future by giving increased emphasis to performance as a RIF retention factor. • the 1981 RIFs directly affected 12,594 or less than 1% of the Federal work force and, statistically, affected women and minorities disp

• the 1981 RIFs generally complied with the RIF regulations, although problems were found concerning improper 

personnel officials to violate the regulations and inadequate communication of RIF information to employees. 

• the 1981 RIFs generally compiled with merit principals and avoided prohibited personnel practices, although there were som

o f m a n a g e m e n t favoritism. 

• agency technical preparation for the 1981 RIFs was generally rated as being adequate. 

• the 1981 RIFs negatively affected the morale of the majority of employees in RIF-affected agencies. 

• alternative actions, such as attrition and personnel freezes, were considered to be effective in minimizing the impa

outplacement services were not widely used. 

Report On The Significant Actions of the Office Of Personnel Management During 1982 This was the third annual report on the significant actions of the Office of Personnel Management (OPM). This repexamined programs and policies initiated by OPM during 1982 and some related 1983 actions to see if they resulted in propreventing prohibited personnel practices. 

Information for this report was derived from several sources: written comments in response to interrogatories sent to the head

departments and independent agencies; responses of 4,900 Federal employees to the Government-wide "Merit Principles Surve

Federal employee union officials at the roundtable on OPM significant actions; and recent studies by the General Acco

other public and private research organizations. 
The 1982 report included a discussion of the following topics: 

• Three Visions of OPM's Impact on the Merit System: OPM, agencies, and employee union representatives differed greatly 

OPM actions have affected the merit system. All viewed changing the current pay and benefits systems as a major priority for 

sional action in the next five years, though they did not agree on the direction that change should take. 

• Incentives to Perform: An analysis of performance measurements and reward systems showed that there was little perce

and performance, and little employee support for merit pay as currently operated. On the plus side, a majority of employees 

appraisal had been fair and accurate. The perceived pay-performance linkage was also higher for merit pay employees than for the 

addition, the level of supervisory activity in dealing with poor performers was reported to be much greater than was indicaperformance-based removal actions. 

• Managerial Discretion and Employee Protection in the SES: No widespread abuse of management of the SES syste

SES executives expressed concern about the potential for such abuse. 

• Recruiting and Retaining a Quality Work Force : Reduced hiring of entry-level employees has limited the impact o

Professional and Administrative Career Examination (PACE) and the new Schedule B authority which replaced it, but tcerned about the potential for negative impact. Although a majority of executives criticized the SES for not providthey do not plan to leave the Government. 

• OPM Action and Inaction on Previous Board Recommendations: OPM has taken appropriate action in respon

previous recommendations, but needs to take further action in other areas such as assessing the impact of performance appraisal 

Study on MSPB Appeals Decisions for FY 1982

This third annual report on the Board's appeals decisions provided a comprehensive statistical update on the Board's a

1982 and places the results in historical context. The study included information on the types and numbers of appeals proaverage appeals processing time, number of hearings held, agency reversal rates, appellant reversal rates, number of petitions for re

Roundtable Monograph on the RIF System in the Federal Government: Is It Working and What Can Be Done to Improve It? 

This monograph reported on the proceedings of the RIF roundtable sponsored by MSRS in July. Roundtable panel member

OPM, GAO, MSPB, EPA, and the U.S. Synthetic Fuels Corporation who had extensive knowledge about the subject of RIF. The 

policymakers and other interested parties from the Congress, employee unions, public policy organizations, and the Federal personn

Topics discussed included the results of recent studies on RIFs, the strengths and weaknesses of the current RIF system, an

proposed revisions to the RIF regulations. The report presents the formal presentations of the panel members, selected portions of the 

between the audience and panel members, and a listing of unanswered policy questions regarding RIF which should be addresse