U.S. Merit Systems Protection Board

Congressional

Budget 

Justification

FY 2024

Prepared for the 

Committee on Appropriations

March 2023
Table of Contents

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

Internal Challenges Affecting MSPB Operations.....................................................................................2

External Events Affecting MSPB Operations...........................................................................................5

FY 2024 Budget Request .........................................................................................................10

Appropriation Language.............................................................................................................................10

Strategic Goals and Objectives..................................................................................................................11

FY 2024 Request by Object Class.............................................................................................................12

Budget Schedule O - Object Classification (Dollars In Thousands) ...................................................17

Budget Schedule Q - Employment Summary .........................................................................................18

Conclusion....................................................................................................................................................19

About MSPB............................................................................................................................20

Board Organization.....................................................................................................................................20

Providing and Using Administrative Data for Statistical Purposes......................................................20

Adjudication .................................................................................................................................................20

Mediation Appeals Program ......................................................................................................................22

Merit Systems Studies and OPM Oversight ............................................................................................22

Publications Issued between FY 2021 – FY 2023 ..................................................................................22

Information Technology.............................................................................................................................24

Human Resources........................................................................................................................................24

Financial Management ................................................................................................................................24

Equal Employment Opportunity ..............................................................................................................25

Organization Chart......................................................................................................................................26

List of Abbreviations and Acronyms .......................................................................................27

FY 2024 Program Increases/Decreases from FY 2023 Enacted Budget................................29
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The U.S. Merit Systems Protection Board

Congressional Budget Justification

Fiscal Year 2024

Introduction

The U.S. Merit Systems Protection Board’s (MSPB or Board) fiscal year (FY) 2024 budget request is 

$59,188,000 plus $2,345,000 to be transferred from the Civil Service Retirement and Disability Fund, 

for a total FY 2024 budget request of $61,533,000. 

There is enormous pressure on MSPB to quickly adjudicate the inherited inventory of petitions for 

review (PFRs), even as the agency receives new PFRs. After over five years without a quorum of 

Board members, the quorum was restored in March 2022 with an inherited inventory of 3,793 PFRs 

and other types of cases handled by MSPB Headquarters (HQ). Moreover, MSPB’s work has 

increased in complexity as new laws were enacted over the five years since the agency last had a 

quorum. MSPB’s mission-critical work must be appropriately resourced to expeditiously resolve the 

cases in the inherited inventory, timely adjudicate newly filed cases at the regional and HQ levels, 

and fully support our studies function in the evolving Federal employment environment.

The Board lost its quorum on January 8, 2017. The quorum was restored on March 4, 2022, when 

Raymond Limon was appointed as a Member of the Board with the designation of Vice Chairman 

and Tristan Leavitt was appointed as a Member of the Board. Shortly thereafter, on June 1, 2022, 

Cathy Harris was appointed as a Member of the Board and subsequently designated Vice Chairman 

by the President on June 6, 2022. By statute, she is currently the Acting Chairman and her separate 

nomination as Chairman is pending in the Senate. Most recently, Tristan Leavitt departed after 

fulfilling his term, which ended on February 28, 2023. MSPB is incredibly grateful for his leadership 

and contributions prior to and during his term as Member.

Each Board member is staffed by, at a minimum, a chief counsel, and a confidential assistant. The 

Acting Chairman and Member Limon have each hired a confidential assistant. The remainder of the 

Board members’ staffs are comprised of detailees from MSPB’s career adjudicatory staff, primarily

from HQ, and some from the regions. These MSPB employees play a key role in addressing the 

inherited inventory and the cases that MSPB receives at HQ each year. The Acting Chairman also 

has appointed a General Counsel and Executive Director and is in the process of filling other key 

leadership vacancies. 

The inherited inventory consisted of 3,793 cases as of March 4, 2022, and the new Board has 

decided 1,219 cases (PFRs and other cases), 1,146 of which were part of the inherited inventory, as 

of February 28, 2023. Although career staff have drafted recommended decisions for the vast 

majority of the cases in the inherited inventory, it is an immense undertaking for the new Board to 

consider, vote, and issue decisions on such a high volume of cases, and it requires an increase in 

staffing levels with corresponding funding to support it. Additionally, with the restoration of the 

Board, MSPB has resumed its other statutory mission of preparing and releasing study reports to the 

President and Congress, and we have an ambitious new Research Agenda.

An additional challenge has been the COVID-19 pandemic, which has negatively affected parts of 

MSPB’s operations. Although MSPB created a policy allowing limited filing by email and encouraged 
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parties to use MSPB’s E-Appeal Online electronic filing system, the pandemic affected MSPB’s 

ability to handle in-office operations, including processing paper appeals and case files, for 

approximately two years. The unprecedented volume of telework during that period strained 

MSPB’s information technology (IT) and communication services and slowed the progress of the 

agency’s critical IT modernization efforts. It also hampered MSPB’s ability to complete the 

digitization of the PFR inventory, approximately 40% of which still consists of paper case files, 

many of which are voluminous.

Given these challenges, our ability to efficiently and successfully adjudicate the inherited inventory

and transition the agency and our stakeholders to a new electronic filing and case management 

system at the end of FY 2023, while returning the agency to more normal operations, pose the 

biggest test in MSPB’s history. While the stakes for the Federal Government and merit systems are 

high, MSPB, with appropriate staffing, will overcome these challenges and continue to protect the 

merit system principles (MSPs) and promote an effective Federal workforce free of prohibited 

personnel practices (PPPs). With this objective in mind, MSPB respectfully requests Congress’ 

consideration of this full budget request.

Internal Challenges Affecting MSPB Operations

Board Quorum Restored

On January 8, 2017, the Board lost its quorum of members. Although agencies and appellants could 

still file PFRs of administrative judges’ (AJ) decisions, during the lack of quorum, the Board could 

not issue decisions on PFRs and other cases at HQ until its quorum was restored on March 4, 2022. 

During the more than five-year absence of a quorum, the inventory of PFRs and other cases 

pending at HQ grew to 3,793 as of March 4, 2022. This figure represents about four times the 

number of PFRs, and other cases received by HQ in a typical year, historically. 

Once the quorum was restored, the new Board members and MSPB career staff quickly shifted into 

action and began issuing decisions on March 18, 2022. However, with the restoration of the

quorum, there has been a significant increase in MSPB’s workload. In a typical year, approximately 

11% of the Board’s PFR decisions are remanded to the AJs for further adjudication. With the arrival 

of new Board members, whose priorities sometimes differ from those of the previous Board, an 

above-average percentage of cases may be remanded to the regional and field offices. For example, 

in FY 2022, cases were remanded at a rate of 13%. It is expected that this trend will continue. 

Moreover, additional remands may occur as the Board applies recent case law from our reviewing 

circuit courts to the cases it decides and issues regulations and precedent concerning new statutes 

that were enacted during the period MSPB lacked a quorum. Similarly, many recommended PFR 

decisions that already were drafted by career staff at HQ are requiring additional revision before 

issuance by the new Board to consider new case law, statutes, regulations, and the new Board’s 

priorities. It is essential to fully staff MSPB’s adjudication functions to address this significant 

additional workload. Currently, MSPB has 14 vacant HQ adjudication positions and 10 vacant 

regional adjudication positions. These positions were depleted through attrition and have not been 

backfilled due to funding constraints. 

In addition to the absence of Board decisions during the lack of quorum period, MSPB was unable 

to release study reports to the President and Congress. MSPB conducts objective, independent 
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research supporting strong merit systems that protect the public’s interest in a high-quality, diverse 

professional workforce managed under the MSPs and free from PPPs. MSPB’s research has 

addressed topics such as hiring practices and authorities, sexual harassment in the Federal 

workplace, whistleblower protections, managing employee conduct and performance problems, and 

the effectiveness of the human resources (HR) workforce. The Board reviewed and approved a new 

MSPB research agenda. MSPB’s Office of Policy and Evaluation (OPE) prepared the updated 

research agenda after soliciting ideas from stakeholders (including Federal employees and

supervisors, unions and other employee groups, agency chief human capital officers, and the public) 

and evaluating over 300 ideas received against criteria such as importance, timeliness, and 

practicality.

The new Research Agenda for 2022-2026, published on September 29, 2022, will determine MSPB’s 

studies workload for the next few years, including FY 2024. MSPB’s studies program needs to 

remain fully staffed not only to carry out that research agenda, but also to conduct advanced data 

analysis on Federal workforce issues. Surveys are essential to many of the proposed studies, 

including those related to the incidence of PPPs and adherence to MSPs. MSPB previously procured 

a survey platform to avoid relying on a new contract for each survey, which shortens the timeline for 

MSPB survey activity and makes each survey more cost-effective. Additionally, as data collection 

tools have been modernized, OPE has received overwhelming interest in its reports and data. We 

must ensure OPE researchers have the appropriate skills, software, and training to answer the 

pressing questions about how well Federal workplaces observe merit principles. The research 

function, in conjunction with MSPB’s adjudication of individual appeals and its authority to review 

Office of Personnel Management (OPM) regulations and significant actions, ensures that the Board 

both oversees Federal merit systems at the systemic level and remedies PPPs on an individual level.

Finally, the more than five-year absence of a quorum adversely affected MSPB’s ability to 

promulgate regulations to reflect congressionally mandated changes in the agency’s jurisdiction and 

procedures. The last substantial update to MSPB’s regulations was in 2015. Since then, several 

changes to MSPB’s regulations have become necessary to ensure they comply with newly enacted 

statutes and to reflect improvements in MSPB’s procedures. Now that a quorum is restored, 

significant resources are required to update MSPB’s regulations.

Retirement Eligibility and Human Capital Planning

MSPB’s enacted budgets for FYs 2014–2021 allowed the agency to maintain a sufficient workforce 

to perform its statutory functions effectively, although they did not fully fund the authorized 

number of full-time equivalents (FTE). In addition, by the end of FY 2024, nearly 24% of MSPB 

employees will be eligible to retire. Reductions in our budget authority will inhibit the Board in 

replacing these critical vacancies, resulting in slower case processing times, including processing 

times mandated by statute and regulation; a slower decline in the inherited inventory; and a 

reduction in the number, scope, and depth of merit systems studies and publications. Such a 

reduction in MSPB’s workforce also would limit the capacity for outreach and education services, 

which play a key role in ensuring that Federal agencies and their employees understand the Board’s 

role and processes and interact in a timely and responsive way with MSPB. Educating the Federal

workforce also improves efficiency and effectiveness throughout the government by helping 

agencies understand and act in accordance with MSPs, avoid PPPs, and promote the overall 

efficiency of the civil service. 
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MSPB’s IT Modernization

In FY 2019, MSPB began modernizing its core business applications, starting with the development 

of a new cloud-based case management workflow system that is certified by the Federal Risk and 

Authorization Management Program (FedRAMP). This updated functionality will replace several 

legacy systems, including MSPB’s E-Appeal Online, document management, and document 

assembly systems, which are at or nearing end-of-life and prevent MSPB from achieving 100% 

electronic adjudication of appeals. Although the project was paused for several months in FY 2020 

as we adjusted our operations in response to the pandemic, we have continued to make significant 

progress toward project completion. The application will continue to evolve after implementation 

to fully support internal and external stakeholder needs. MSPB has been striving to improve user

experience by designing this enterprise application to ensure that appellants, appellant 

representatives, and agency representatives are able to easily and intuitively file appeals and

pleadings, as well as self-manage all aspects of their cases before the Board. This effort directly aligns 

with the second priority of the President’s Management Agenda to improve customer experience. 

In FY 2021, MSPB engaged in planning efforts to modernize all remaining legacy systems; upgrade 

its network architecture to support a hybrid workforce; increase internet capacity as MSPB 

transitions to cloud-based services; enhance cybersecurity consistent with Executive Order 14028, 

“Improving the Nation’s Cybersecurity;” and transition business processes to comply with the 

government’s transition to electronic records.

In FY 2022, MSPB began network transformation efforts to support a cloud-native environment. 

These efforts are continuing in FY 2023 with the migration of MSPB’s analog phone system to a 

cloud-based softphone platform. MSPB plans to engage in several other modernization efforts in 

FY 2024, including replacing laptops and migrating MSPB’s research and analysis tools to a cloudbased, software-as-a-service platform that will improve security and reliability and reduce the 

complexity of IT services. This solution also will allow for web integration so MSPB can publish 

survey dashboards.

Another IT priority is cybersecurity, for which MSPB is requesting an additional $1.49 million to 

better comply with Office of Management and Budget (OMB) mandates, Department of Homeland 

Security binding operational and emergency directives, and Executive Order 14028. Without an 

enhanced budget specifically to support cybersecurity, MSPB will continue to be in a reactive 

posture, putting the organization at risk when it could instead, with adequate resources, take active 

measures to identify and protect against threats. The threat landscape is constantly shifting, and the 

tools, capabilities, and training needed to combat threats are always evolving; it is essential that the 

agency keep up. The table on page 5 provides a breakdown on the cost included in the FY 2024 

request based on National Institute of Standard and Technology (NIST) categories. All of these 

investments and initiatives are directly in support of Executive Order 14028. The requested

budgetary increase also will ensure MSPB IT staff have appropriate tools and knowledge to address 

threats and continue to help achieve MSPB’s mission and strategic objectives.
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NIST Category Capability Amount

Identify Authorization and Policy $ 286,050.00

Protect Credentialing and Access Management $ 65,000.00 

Detect Data Loss Prevention $ 20,000.00 

Respond Incident Management and Response $ 850,000.00 

Protect Other Protect $ 50,000.00 

Protect Other Protect Capabilities $ 66,950.00 

Protect Zero Trust Network Architecture $ 111,301.00 

Protect Security Log Management $ 50,000.00 

Total $ 1,499,301.00 

External Events Affecting MSPB Operations

Several recent external factors have affected MSPB’s operations and will continue to do so, resulting 

in the need for additional resources. 

COVID-19 Pandemic

At MSPB—as everywhere else—the pandemic transformed daily life for everyone. Employees had 

to try to balance work and family life in new and more demanding ways. Shifting or delaying some 

tasks temporarily during the maximum telework period of the pandemic helped the agency triage 

certain duties during the pandemic. That said, the pandemic severely impeded our ability to 

appropriately staff work that can only be done in-office. MSPB officially began reentry in October 

2021, although high levels of community transmission initially limited in-office staffing capacity 

pursuant to our COVID-19 Workplace Safety Plan. Additional reentry occurred in April and May 

2022, as the quorum was restored. Ongoing pandemic-related stress, from the uncertainties of 

COVID-19 itself to the social and psychological isolation many have experienced, remains an 

ongoing challenge for employees and agency leaders.

Enactment of New Statutes by Congress

Whistleblower Protection Laws

In the first 20 years after the Civil Service Reform Act of 1978 established the original 11 PPPs, 

Congress added just one PPP. In the past 7 years, Congress has added two PPPs, both of which 

were prompted by concerns about whistleblower protection. Since the enactment of the 

Whistleblower Protection Enhancement Act of 2012 (WPEA), appeals filed in the regions and PFRs 

to the Board involving reprisal for whistleblowing or other activity protected by the WPEA have 

increased significantly. Currently, approximately 25% of all PFRs in MSPB’s inherited inventory 

involve such claims.
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The WPEA and subsequent whistleblower legislation also increased the complexity of adjudicating 

whistleblower cases. Prior to the WPEA, for example, many whistleblower claims failed under thencurrent case law because the disclosure at issue was made to the alleged wrongdoer or was made in 

the appellant’s normal course of duties. Such findings were made at the first step of a three-step 

analysis, and thus remaining issues were not adjudicated. Pursuant to the WPEA, such disclosures 

may now be found protected, requiring further legal analysis, and resulting in a greater number of 

hearings on the merits of a claim. As a result, the adjudication of cases under the WPEA has become 

more complex, time-consuming, and resource intensive. 

Additionally, MSPB’s jurisdiction over whistleblowing—even in the absence of an otherwise 

appealable action—may now extend over many more and varied concerns. Claims of retaliation 

based on the exercise of a right related to prior whistleblowing activity; assisting another individual 

in the exercise of any appeal, complaint, or grievance; cooperating with or disclosing information to 

an agency’s inspector general (or any other component responsible for internal investigation or 

review) or the Office of Special Counsel (OSC); or refusing to obey an order that would require the 

individual to violate a law, rule, or regulation, have been added to MSPB’s jurisdiction pursuant to 

statutory amendments in the past ten years. The National Defense Authorization Act (NDAA) for 

FY 2020, enacted December 20, 2019, explicitly protects whistleblower disclosures to Congress, 

including some classified disclosures. The NDAA for FY 2023, enacted December 23, 2022, 

included a provision permitting employees of the Federal Bureau of Investigation (FBI) to file 

whistleblower claims with MSPB. The increased complexity of whistleblower cases is likely to create 

a need for more in-person hearings, with associated increases in travel costs, and require additional 

adjudication resources at the regional and HQ levels.

As part of the WPEA, Congress introduced a pilot program permitting employees with cases 

involving reprisal for whistleblowing or other activities protected by the WPEA to appeal MSPB’s 

decisions to any Federal circuit court of appeals of competent jurisdiction rather than only to the 

U.S. Court of Appeals for the Federal Circuit. Congress made the pilot program permanent effective 

November 26, 2017. Before the pandemic, this “all-circuit review” resulted in an increase in the 

travel of MSPB attorneys to argue cases in person throughout the country, and it will likely continue 

to require additional travel after the pandemic is over. As mentioned above, about 25% of the 

Board’s inventory consists of these types of cases. 

Some of the statutory changes related to whistleblower protection will impact the operation of 

Federal agencies. For example, both the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 

and the OSC Reauthorization Act contained provisions mandating proposed discipline for any 

supervisor found by the head of an agency, OSC, MSPB, an administrative law judge (ALJ), a 

Federal judge, or an inspector general to have committed whistleblower retaliation. For a first 

offense, the agency must propose a suspension of at least three days, and for a second offense, an 

agency must propose removal. While suspensions of 14 days and under are not otherwise appealable 

to MSPB, removals are directly appealable. This provision represents a significant transformation in 

how agencies are required to respond to alleged retaliators. Effective November 16, 2020, OPM 

issued implementing regulations that likely will have the effect of increasing awareness of and 

compliance with these provisions throughout Government.

As noted above, section 5304 of the NDAA for FY 2023 (P.L. 117-263) provides FBI employees

who allege reprisal for protected whistleblower activities with the right to appeal a final 

determination or corrective action order to MSPB under 5 U.S.C. § 1221. It also allows for an appeal 
7

to MSPB under § 1221 if no final determination or corrective action order has been made or issued 

within one-hundred eighty (180) days of the FBI being notified of the allegation of reprisal. FBI 

appeals generated by this statute may require the Board to obtain additional security clearances or, 

alternatively, to extend its contract with outside ALJs to hear these cases, leading to increased 

adjudication costs in either instance. 

Overall, it is probable that both the number and complexity of WPEA-related appeals and PFRs will 

continue to grow in the coming years, requiring funding for additional resources to adjudicate them. 

National Defense Authorization Act for FY 2017 (P.L. 114-328)

The NDAA for FY 2017 contained three provisions that have increased appeals to MSPB.

Section 512 provided limited appeal rights to dual-status military technicians serving in the National 

Guard. This was a significant change in the law with respect to such employees, who previously had 

no such rights.

Section 1138 enacted the Administrative Leave Act of 2016 (codified as 5 U.S.C. § 6329b), which 

expands MSPB’s jurisdiction by adding to the possible grounds on which an employee might file an 

appeal. It makes placement on investigative leave for “not less than 70 workdays” a personnel action 

under the subsection 8 and 9 whistleblower protections of 5 U.S.C. § 2302(b).

Section 1140 expanded MSPB’s jurisdiction in cases of voluntary separation during a personnel 

investigation. As codified in 5 U.S.C. § 3322, an employee who voluntarily resigns while under 

investigation is entitled to file an appeal with MSPB over the notation in their personnel file of an 

adverse finding resulting from the investigation. 

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017

The Department of Veterans Affairs (VA) Accountability and Whistleblower Protection Act of 2017

changed the requirements for appeals of adverse actions taken against VA employees. It lowered 

MSPB’s standard of review for adjudication of VA adverse actions taken under 38 U.S.C. § 714 from 

preponderant to substantial evidence and requires an MSPB AJ to issue a decision on an appeal of 

such actions within 180 days. These changes to adjudicating § 714 cases influence the processing of 

all MSPB cases as schedules must shift to meet this statutory requirement. The law also effectively 

replaced the Veterans Access, Choice, and Accountability Act of 2014 for VA Senior 

Executive Service appeals.

Section 714 eliminated MSPB’s authority to mitigate penalties in these types of cases. However, 

subsequent decisions of the Federal Circuit have found that MSPB must nonetheless review the 

legality of any agency penalty, including by applying the factors set forth in Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 305-06 (1981). See, e.g., Connor v. Department of Veterans Affairs, 8 F.4th 

1319, 1326-27 (Fed. Cir. 2021). If MSPB finds the penalty is not supported by substantial evidence, 

or if the VA failed to consider the Douglas factors in determining the appropriate penalty, the case 

should be remanded to the VA for a redetermination of the penalty.

The Federal Circuit also found that the burden of proof to be applied by the VA when making its 

decision in an action taken under § 714 is preponderant evidence, not substantial evidence, 
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necessitating reversal or remand by MSPB when the VA fails to apply the correct burden of proof. 

See Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1297-1301 (Fed. Cir. 2021).

These two significant changes in the interpretation of a relatively new statute will likely result in 

many reversals and remands of VA actions taken under § 714. In addition, the Act contains a 

provision that is similar to the Governmentwide requirement that discipline be proposed for 

supervisors found to have committed whistleblower retaliation and includes matters such as 

conducting a negative peer review, opening a retaliatory investigation, or taking a personnel action 

against an employee in relationship to their participating in an audit or investigation by the 

Comptroller General, in addition to those listed in 5 U.S.C. § 2302. Although not all VA cases are 

brought under this law, MSPB has seen an overall increase in the number of VA cases filed since the 

law took effect.

Other External Factors Leading to Increased Appeals to MSPB

Executive Orders 14020 and 14035 

On June 25, 2021, President Biden issued Executive Order 14020, “Establishment of the White 

House Gender Policy Council,” which established a policy to promote diversity and inclusion in the 

Federal workforce. On the same date, President Biden issued Executive Order 14035, “Diversity, 

Equity, Inclusion, and Accessibility in the Federal Workforce,” which similarly seeks to attain a 

Federal workforce that reflects all segments of society. As a result, there could be an increase in 

affirmative defenses based on discrimination being raised in cases when appellants believe their 

agencies have not complied with the letter or intent of these Executive Orders. Moreover, MSPB 

has a mandate to study the application of MSPs in Federal workplaces and will have an increased 

demand for an additional number of specific studies and reports, greater in scope and depth, 

analyzing the impacts of these Executive Orders.

Pregnant Workers Fairness Act and Providing Urgent Maternal Protections Act

On December 29, 2022, President Biden signed the Consolidated Appropriations Act for Fiscal 

Year 2023 (P.L. 117-328) which contained two provisions potentially impacting MSPB—the 

Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) 

for Nursing Mothers Act or the PUMP for Nursing Mothers Act. The PWFA adopts the same 

meaning of “reasonable accommodation” and “undue hardship” as used in the Rehabilitation Act, 

which applies to Federal employees and mirrors the standards of the Americans with Disabilities 

Act, with respect to employer obligations in responding to accommodation requests based on a 

physical or mental condition related to pregnancy, childbirth, and associated medical conditions. It 

also provides that an employer cannot require an employee to take paid or unpaid leave as an 

accommodation if another reasonable accommodation is available. As under the Rehabilitation Act, 

under the PWFA, employers are not required to provide employees with the desired 

accommodation where an alternative reasonable accommodation is available. The PUMP for 

Nursing Mothers Act expands existing obligations under the Fair Labor Standards Act to provide 

nursing employees with reasonable break times to express breast milk for a year after the child’s 

birth and describes specific requirements for lactation rooms. The PUMP for Nursing Mothers Act 

covers all employees.
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Supreme Court Decision and Executive Actions Related to Lesbian, Gay, Bisexual, Transgender, Queer or 

Questioning Employment Rights

In Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020), the Supreme Court held that taking adverse 

employment actions against employees because of their sexual orientation or transgender status 

constitutes sex discrimination. Previously, discrimination based on either sexual orientation or 

transgender status had not been seen universally as a violation of Title VII. Separately, on 

January 25, 2021, President Biden issued Executive Order 13988, which requires that agencies 

promulgate agency actions (orders, regulations, policies, etc.) that prohibit discrimination on the 

basis of “gender identity or sexual orientation.” Executive Order 13988 and the holding in Bostock

open the door for the filing and adjudication of more appeals raising sex discrimination on those 

bases as affirmative defenses, thus expanding the range of issues MSPB will review in such appeals. 

Federal Circuit Decisions Related to Whistleblowing and Performance-based Actions

In Hessami v. MSPB, 979 F.3d 1362 (Fed. Cir. 2020), the Federal Circuit made several rulings which 

increase the likelihood that whistleblowing appeals to MSPB will proceed to a hearing on the merits 

of a claim. The court held that an appellant’s whistleblowing disclosure related to disputable policy 

matters does not preclude it from being protected because, under the WPEA, “policy decisions and 

disclosable misconduct are not mutually exclusive.”

The court also held that in determining whether an appellant made a nonfrivolous jurisdictional 

allegation under the WPEA, the Board may not consider evidence introduced by the agency. 

Instead, the Board is limited to “evaluating whether the appellant has alleged sufficient factual 

matter, accepted as true, to state a claim that is plausible on its face.” However, on January 19, 2022, 

the court issued Smolinski v. MSPB, 23 F.4th 1345 (Fed. Cir. 2022), which held that Hessami does not 

prohibit reliance on certain agency evidence supporting the appellant’s claim to jurisdiction. The 

holdings in these two cases will likely require continued significant analysis by MSPB and may result 

in a higher number of appeals proceeding past the jurisdictional stage to hearings on the merits of 

the cases.

In Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021), the Federal Circuit significantly expanded the 

potential scope of admissible evidence and discovery in performance-based actions taken under 

5 U.S.C. § 4302, holding that when an agency predicates removal on an employee’s failure to satisfy 

obligations imposed by a performance improvement period (PIP), the agency must further 

demonstrate that the employee’s performance justified imposing a PIP in the first instance. This will 

lead to more complex and lengthy adjudication of performance-based actions before MSPB.

All of these decisions increase the number, length, and complexity of hearings that are conducted in 

cases involving claims of whistleblowing and those based on performance under 5 U.S.C. § 4302,

and will likely call for additional adjudication resources, including travel for hearings and court 

reporter costs. Additionally, expanded resources for the MSPB studies function may be required to 

research the consequences of these cases for Federal workplace practices.

Potential Workload Resulting from the COVID-19 Pandemic

As the COVID-19 pandemic subsides, Federal agencies are grappling with return-to-office, hybrid, 

and remote work policies. OPM and other agencies have issued and are working on additional 
10

Governmentwide guidance about the future of work. It is also likely that Federal expenditures 

related to the COVID-19 pandemic will affect the budgets of Federal agencies into the future. While 

it is impossible to know for sure, agencies may face budget cuts or shortfalls, which may lead to 

reduction in forces (RIFs) or furloughs of agency employees. In addition, agencies have had to 

quickly develop and revise operational policies during the pandemic and in planning for the future 

of work. 

The effect on employees of telework eligibility determinations, reentry and post-reentry plans and 

policies, safety and security protocols, accountability for health and safety behaviors, and sharing 

health-related information, for example, could affect merit-based management and the occurrence 

of PPPs. We may see an increase in whistleblowing and claims of retaliation for whistleblowing 

related to the pandemic. It is still too early to know the full extent of the effects of the pandemic and 

its aftermath on the Federal workplace and the degree to which they might increase appeals filed 

with MSPB; however, we have received appeals related to the pandemic. In the near term, MSPB 

must be prepared to ensure its studies function is able to assess potential impacts of the pandemic 

on merit-based management and the occurrence of PPPs, among other potential effects.

Workload Resulting from Department of Homeland Security, Transportation Security Administration (TSA) 

Expansion of Appeal Rights for Transportation Security Officers (TSOs)

In Department of Homeland Security, Secretary Alejandro N. Mayorkas’s June 3, 2021, 

memorandum supporting the TSA workforce through improving the TSO employment experience, 

the Secretary directed a review and evaluation of whether its current standards align with Title 5 

personnel protections. Expecting legislation that would provide MSPB appeal rights, TSA began to 

afford TSOs similar appeal rights as other TSA employees with MSPB appeal rights. On September 

13, 2021, MSPB entered into a reimbursable agreement with TSA to adjudicate appeals. In FY 2022, 

MSPB adjudicated 52 appeals under their newly established rights, pending legislation that would 

otherwise increase our non-reimbursable workload. The agreement was renewed for FY 2023.

FY 2024 Budget Request

Appropriation Language 

For necessary expenses to carry out functions of the U.S. Merit Systems Protection Board pursuant 

to Reorganization Plan Number 2 of 1978, the Civil Service Reform Act of 1978, and the 

Whistleblower Protection Act of 1989 (5 U.S.C. § 5509 note), as amended, including services as 

authorized by 5 U.S.C. § 3109, rental of conference rooms in the District of Columbia and 

elsewhere, hire of passenger motor vehicles, direct procurement of survey printing, and not to 

exceed $2,000 for official reception and representation expenses, $59,188,000 to remain available 

until September 30, 2025, and in addition $2,345,000, to remain available until September 30, 2025, 

for administrative expenses to adjudicate retirement appeals to be transferred from the Civil Service 

Retirement and Disability Fund in amounts to be determined by the U.S. Merit Systems 

Protection Board. 

The Board has authority to adjudicate appeals from a final administrative action or order affecting 

the rights or interests of an individual under 5 U.S.C. § 8347(d) (the Civil Service Retirement System) 

and 5 U.S.C. § 8461(e) (the Federal Employees’ Retirement System). Pursuant to 
11

5 U.S.C. § 8348(a)(3), the Fund is made available, subject to such annual limitation as Congress may 

prescribe, for any expenses incurred by the Board in the administration of such appeals. 

Strategic Goals and Objectives 

MSPB’s FY 2024 Congressional Budget Justification is based on its Strategic Plan. The agency’s 

performance goals cover the critical components of two strategic goals, and the performance 

measures support MSPB’s ability to manage and report performance over time. 

The strategic goals and objectives are: 

Strategic Goal 1: Serve the public interest by protecting merit system principles and 

safeguarding the civil service from prohibited personnel practices. 

Strategic Objectives:

1A: Provide understandable, high-quality resolution of appeals, supported by fair and 

efficient adjudication and alternative dispute resolution (ADR) processes.

1A-RO: Provide understandable, high-quality resolution of initial appeals in the 

Regional and Field Offices, supported by fair and efficient adjudication and 

ADR processes.

1A-HQ: Provide understandable, high-quality resolution of appeals at HQ, supported 

by fair and efficient adjudication and ADR processes.

1B: Enforce timely compliance with MSPB decisions.

1C: Conduct objective, timely studies of the Federal merit systems and Federal human capital 

management issues. 

1D: Review and act upon the rules, regulations, and significant actions of OPM, 

as appropriate. 

Strategic Goal 2: Advance the public interest through education and promotion of stronger 

merit systems, adherence to merit system principles, and prevention of prohibited 

personnel practices. 

Strategic Objectives:

2A: Support and improve the practice of merit, adherence to MSPs, and prevention of PPPs 

in the workplace through successful, targeted outreach and engagement. 

2B: Advance the understanding of merit, the MSPs, and the PPPs for stakeholders and the 

public by developing and sharing informational and educational materials and guidance. 
12

Management Objectives

M1: Lead, manage, and develop employees to ensure a highly qualified, diverse, inclusive, and 

engaged workforce with the competencies to perform MSPB’s mission and support 

functions successfully. 

M2: Modernize IT to support agency mission and administrative functions.

FY 2024 Request by Object Class 

MSPB requests a total budget authority of $61,533,000 for FY 2024, which includes $59,188,000 in 

appropriated funds and a transfer of $2,345,000 from OPM’s Civil Service Retirement and Disability 

Fund. With this level of funding, MSPB will be appropriately resourced for the long and difficult 

process of adjudicating the inherited inventory and new appeals, issuing study reports on the merit 

systems in accordance with our Research Agenda, and supporting our cloud-native network 

modernization and transformation. 

Personnel compensation and benefits constitute approximately 80% of MSPB’s budgetary expenses. 

Additionally, about 6% of MSPB’s budget authority is for rent to the General Services 

Administration (GSA) for MSPB office spaces. The remaining approximately 14% is spread across 

services from other government agencies (human resources, payroll, accounting, and ALJs), IT 

modernization and sustainment, and all other operational requirements (travel, printing, facilities 

maintenance, and general supplies). The budget constraints have been challenging to MSPB. 

Traditionally, MSPB has been authorized 235 full time equivalents (FTEs); however, the previously 

enacted budgets have not fully supported the authorized FTE levels. We respectfully request that 

this be changed for FY 2024 so that we can meet our mission’s longstanding personnel needs given 

the restoration of our quorum after more than five years and the unprecedented challenges we face, 

while maintaining operations and modernizing our IT systems. 

Personnel Compensation & Benefits 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request

(000)

Increase 

(decrease) 

over FY 2023

(000)

11 Personnel Compensation $30,838 $35,792 $4,954

12 Benefits $9,740 $11,205 $1,465

Personnel compensation and benefit expenses are the largest component of the MSPB FY 2024 

budget request. In this request, we are asking for budgetary resources to support 236 FTEs. MSPB’s 

current budget can support approximately 210 FTEs, and we require an additional 26 FTEs 

(14 FTEs for HQ adjudication, 10 FTEs for regional adjudication, and 2 FTEs for management 

support), for a total of 236 FTEs in FY 2024. These resources are vital to ensure MSPB 
13

expeditiously and effectively responds to the inherited inventory, updates our regulations, executes 

Board priorities, and sustains current operations.

Now more than ever, MSPB requires a full complement of staff to support the mission. We have 

been diligent in our responsibilities to ensure the effective and efficient use of taxpayer dollars, and 

with 80% of MSPB’s budget supporting salaries and employee benefits, it is not possible to hire the 

staff we need without congressional commitment and support in this and future budget cycles.

Travel & Transportation of Persons 

 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

21 Travel & Transportation 

of Persons $200 $410 $210

MSPB anticipates an increase in travel as pandemic restrictions have been lifted. The Board’s AJs 

will increasingly resume in-person hearings and mediations, potentially involving travel. Courts are 

re-opening and attorneys are more frequently obligated to argue in person. Legislative changes have 

extended jurisdiction over appeals with whistleblower issues to all U.S. Federal circuit courts, 

potentially requiring MSPB’s attorneys to periodically travel to various Federal courts of appeals to 

represent the agency. This was rarely required before the enactment of the WPEA. Moreover, travel 

is required to support in person training, outreach events, site visits, interviews for studies, and 

presentations at conferences. The Board members plan to visit the regional and field offices and 

attend mission-related conferences, and they will request that regional directors periodically attend 

meetings at HQ.

The increase in travel in the MSPB FY 2024 request plans for inflation in travel costs and a 

significant increase in travel volume. Holding travel at previous budget levels would prohibit the 

organization from fully supporting in-person hearings and the Mediation Appeals Program (MAP). 

Among other benefits, in-person hearings allow the MSPB AJ to better assess the credibility of 

witnesses by better observing their demeanor. Virtual mediations deprive appellants and other 

participants of the opportunity to interact with the opposing party in a formal setting without 

interruption, which ultimately could impact the parties’ ability to settle. Additionally, this hinders 

MSPB from supporting presentations at legal symposia, mission-related conferences, and training 

events because in-person court appearances by our attorneys take precedence over these other 

engagements.

 

 

 

 

 

 
14

Transportation of Things 

 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

22 Transportation of Things $36 $26 ( $10)

 

MSPB anticipates a cost savings in freight and courier services to support routine operations.

Rent, Communications, & Utilities 

 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

23 Rent, Communications & 

Utilities $4,810 $5,169 $359

The primary increase in this category is to account for the full cost of rent for MSPB’s nine office 

locations. Rent is the second-largest portion of MSPB’s budget, after salaries and benefits. 

Telecommunication rentals is also included in this category and supports IT infrastructure and 

networks services (Managed Services and Data Services) via GSA’s Enterprise Infrastructure 

Solutions contract. This infrastructure and these services are the foundation of MSPB’s network, 

which is actively being modernized and is vital for MSPB’s daily operations.

 

Printing 

 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

24 Printing $64 $37 ($27)

MSPB utilizes the Government Publishing Office (GPO) for publishing in the Code of Federal

Regulations, for photocopy services, and for the GPO Express program. MSPB has been using 

electronic distribution methods, which has reduced our printing costs. However, with the restoration 
15

of the quorum and the approval of new studies and reports on the horizon, this category may see an 

uptick in expenses in future budget years.

 

Other Contractual Services 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

25 Other Contractual Services $3,288 $4,010 $722

The increase of $722,000 is attributed to operating and maintaining the new E-Appeal, a modernized 

adjudication application in FY 2024, integrating the new application’s business intelligence reporting,

and implementation of a cloud security solution. This category covers other services such as court 

reporting, maintenance of facilities, maintenance of equipment, and services from Government

agencies. 

This category funds critical operations via interagency agreements with other Government agencies 

for accounting, purchasing, and travel services (from the Bureau of the Fiscal Service (BFS)), 

personnel services (from the U.S. Department of Agriculture’s (USDA) Animal and Plant Health 

Inspection Service (APHIS)), and payroll services (from USDA’s National Finance Center (NFC)). 

Additionally, MSPB relies on the U.S. Coast Guard and the Federal Trade Commission for ALJ 

services.

 

Supplies & Materials 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

26 Supplies & Materials $359 $351 ($8)

This category funds electronic subscriptions (e.g., Westlaw and other legal research materials), which 

are critical to MSPB operations. MSPB has examined closely these requirements to yield cost savings 

in this category. General office supplies and IT peripheral devices, such as keyboards and docking 

stations costs, are included in this category.

 

 

 

 

 
16

Equipment 

 

MOC Description

FY 2023 

Enacted

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 2023

(000)

31 Equipment $320 $2,188 $1,868

MSPB replaces equipment such as laptops, copiers, printers, scanners, and video teleconferencing 

equipment as it breaks down, is damaged, or reaches end-of-life. Additionally, software for IT 

operations is funded from this category, as are hard-copy law books and publications. 

The FY 2024 request includes replacement of 25% of the agency’s laptop inventory and fully 

funding law books and publications. This category additionally includes a cybersecurity investment 

of $1.49 million to align with Executive Order 14028. This significant investment will ensure that 

MSPB maintains a proactive posture to detect and neutralize vulnerabilities and threats, rather than a 

reactive posture that could result in the compromise and loss of data. 
17

Budget Schedule O - Object Classification (Dollars In Thousands)

FY 2022 

Actuals 

(000)

FY 2023 

Enacted 

(000)

FY 2024 

Request 

(000)

Increase 

(decrease) 

over FY 

2023 

(000)

Direct Obligations:

Personnel Compensation $26,997 $30,838 $35,792 $4,954 

Civilian Personnel Benefits 9,666 9,740 11,205 $1,465 

Travel of Persons 32 200 410 $210 

Transportation of Things 7 36 26 ($10)

Rental Payments to GSA 3,375 3,600 3,914 $314 

Rental Payments to Others 108 65 121 $56 

Communications, Utilities, and 

Miscellaneous Charges

347 1,145 1,134 ($11)

Printing and Reproduction 25 64 37 ($27)

Other Services 2,750 1,276 975 ($301)

Other Purchases of Goods and 

Services from Government Accounts

2,187 1,650 1,920 $270 

Maintenance of Facilities 20 26 22 ($4)

Maintenance of Equipment and 

Software

904 336 1,093 $757 

Supplies & Materials 178 359 351 ($8)

Equipment/Lease Improvement 782 320 2,188 1,868

Direct Obligation. . . 47,378 49,655 59,188 9,533

Reimbursable Obligations. . . 2,345 2,345 2,345 0

Total New Obligations. . . 49,723 52,000 61,533 9,533
18

Budget Schedule Q - Employment Summary 

FY 2022

Actuals

FY 2023 

Enacted

FY 2024 

Request Change

Direct:

Civilian Full-Time Equivalent 

Employment 186 223 224 1

Reimbursable:

Civilian Full-Time Equivalent 

Employment 12 12 12 0

Total... 198 235 236 1

MSPB is authorized 235 FTEs in FY 2023, however funding in the FY 2023 enacted budget only 

supports 210 FTEs. During the previous budget cycles when MSPB was without a quorum, the 

organization held staffing levels constant at approximately 200 FTEs to stay within our enacted 

budgets. With the quorum restored, MSPB requires sufficient resources to fully fund our authorized 

FTE level to address the inherited inventory and process new appeals, execute our studies mission, 

and meet our IT modernization and cybersecurity requirements.

By way of example, upon the arrival of the Board members, five senior adjudication attorneys were 

detailed from the Office of Appeals Counsel (OAC) to the Board members’ offices to ensure that 

they quickly attained fluency with MSPB’s processes and procedures and could assume their 

adjudicatory functions as expeditiously as possible. The Board members continue to rely on those 

detailees to support the pace of work demanded by the inherited inventory and the arrival of new 

cases, leaving OAC, the office that drafts the recommended decisions upon which the Board 

members vote, effectively short-staffed since we do not have the funding to reach our authorized 

FTE level. Appropriately staffing MSPB’s adjudication functions is critical to reducing the HQ case 

inventory that amassed during the five years without a quorum and to keeping up with incoming 

new HQ cases, as well. 

To confront the challenges before us while maintaining the balance between high-quality and timely 

decisions, it is crucial to ensure sufficient adjudication staff with the necessary competencies, 

knowledge, and training to perform their work efficiently.
19

Conclusion

The merit system principles are designed to ensure fair treatment of employees, protect employees 

from misuse of authority, and ensure Federal employees are putting the public interest first. A 

Federal employee’s removal, suspension of more than 14 days, reduction in grade or pay, and 

allegations of whistleblower reprisal, among numerous other concerns, are appealable to the Board. 

There are over 2,600 cases remaining in the inherited inventory (as of February 28, 2023) awaiting 

action by the Board members—cases that involve people who believe they have been unjustly 

treated in the Federal workplace or in other areas of MSPB’s jurisdiction. Some of these individuals 

and their families have been waiting for a decision in their appeal for more than five years while 

MSPB was without a quorum and unable to issue Board-level decisions. Additionally, the agencies 

involved in these cases have been awaiting finality for years, in many instances effectively prevented 

from moving forward with hiring, reinstatements, and other actions. The next two years will be 

MSPB’s most critical since its establishment in 1978. The agency faces unprecedented challenges in 

reducing the inherited inventory while simultaneously preparing to deploy its most significant IT 

modernization efforts in approximately 20 years. MSPB has taken the greatest care in assessing the 

resources it needs to truly succeed. MSPB respectfully requests the support of Congress for our FY 

2024 budget request. 
20

About MSPB 

MSPB has its origin in the Pendleton Act of 1883, which established the Civil Service Commission 

(CSC) and a merit-based employment system for the Federal Government. The Pendleton Act was 

passed after the assassination of President Garfield by a disgruntled Federal job seeker and grew out 

of the 19th century reform movement to curtail the excesses of political patronage in Government

and ensure a stable highly qualified workforce to serve the public. Over time, it became clear that the 

CSC could not properly, adequately, and simultaneously set managerial policy, protect the merit 

systems, and adjudicate 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 CSC in its quasi-judicial capacity; OPM to serve as the President’s agent for Federal

workforce management policy and procedure; and the Federal Labor Relations Authority to oversee 

Federal labor-management relations. The CSRA also codified for the first time the values of the 

merit systems as MSPs and defined PPPs.

Board Organization 

The Board members are the Chairman, Vice Chairman, and Member (but currently include the 

Acting Chairman and one Member). Board members are nominated by the President and confirmed 

by the Senate and serve overlapping, non-renewable seven-year terms. No more than two of the 

three Board members can be from the same political party. The Board members adjudicate the cases 

brought before them. By statute, the Chairman is the chief executive and administrative officer of 

MSPB. The office directors report to the Chairman through the Executive Director. The agency has 

its HQ in Washington, DC, with six regional and two field offices located throughout the United 

States in which AJs adjudicate cases at the initial appeal level, akin to a trial court.

Providing and Using Administrative Data for Statistical Purposes 

MSPB does not have administrative datasets with the potential for statistical use as outlined in OMB 

Memorandum M-14-06, “Guidance for Providing and Using Administrative Data for Statistical 

Purposes.” However, statistical data can be found in the Board’s Annual Reports available at 

www.mspb.gov. The Annual Reports contain summaries of significant opinions issued by MSPB’s 

reviewing courts, case-processing data for initial appeals and Board cases, and summaries of other 

merit systems activity, including articles posted on MSPB’s website. It also contains a review of 

current OPM issues and summaries of MSPB’s congressional, international, and outreach activities, 

and citations to MSPB work, internal management issues, and the external factors that affect the 

Board’s work.

Adjudication 

The majority of cases brought to the Board are appeals of adverse actions—that is, removals, 

suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. The 

next-largest number of cases involves individual right of action cases, followed by appeals of OPM 

and some agency determinations in retirement matters. Congress has given the Board jurisdiction to 

hear cases and complaints filed under a variety of other laws, including the Uniformed Services 

Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq.; the Veterans Employment 
21

Opportunity Act, 5 U.S.C. § 3330a et seq.; the Whistleblower Protection Act (WPA); P. L. 101-12; 

the WPEA, P. L. 112-199; NDAA 2017, P.L. 114-328; the VA Accountability and the Whistleblower 

Protection Enhancement Act, P. L. 115-41; the Dr. Chris Kirkpatrick Whistleblower Protection Act 

of 2017, P.L. 115-73; NDAA 2023 P.L. 117-263; and additional authorities listed in the regulation 

set out at 5 C.F.R. § 1201.3.

Other types of actions that may be appealed to the Board include performance-based removals or 

reductions in grade; denials of a within-grade increase (WGI); RIF actions; suitability determinations; 

OPM employment practices (the development and use of examinations, qualification standards, 

tests, and other measurement instruments); denials of restoration or reemployment rights; and 

certain terminations of probationary employees. 

At the outset of a case, an appellant files an appeal with the appropriate MSPB regional or field 

office having geographical jurisdiction. An AJ in the office ensures that the parties receive the 

procedures called for in the law and MSPB’s regulations and, after providing a full opportunity to 

develop the record on all relevant matters (including a hearing when requested), issues an initial 

decision. Beginning in March 2020, the regional and field offices adjusted their processes and 

procedures to conduct hearings in a virtual environment and continued to adjudicate appeals. Since 

October 2022, in-person hearings again have been offered in the regional and field offices. Unless a 

party files a PFR with the Board, the initial decision becomes final 35 days after issuance. Any party, 

OPM, or OSC may petition the full Board in Washington, DC, to review the initial decision. When a 

PFR is filed, the Board’s decision on the PFR constitutes the final administrative decision on the 

appeal. 

The Board’s final decision, whether it is an initial decision of an AJ that has become final or the 

Board’s decision on a PFR, may be appealed to the U.S. Court of Appeals for the Federal Circuit, or, 

in cases involving allegations of discrimination, to a U.S. District Court or the Equal Employment 

Opportunity Commission (EEOC). In addition, certain cases involving allegations of reprisal for 

whistleblowing may be appealed to any of the U.S. circuit courts of appeals with 

competent jurisdiction.

If a party in a case believes that the other party is not complying with an MSPB order or a settlement 

agreement entered into the record for MSPB enforcement, the party can file a petition for 

enforcement with the regional or field office that issued the initial decision. Once the AJ issues an 

initial decision, which may find compliance, non-compliance, or partial compliance, depending on 

the number of issues raised, either party may file a PFR with the full Board. Additionally, even if 

neither party files a PFR of an initial decision finding non-compliance, MSPB’s regulations require 

that the case be referred to the full Board to ensure that the non-complying party 

has reached compliance. 

In addition to adjudicating cases on the merits, MSPB provides several ADR services to assist parties 

in resolving their cases. Use of these services is voluntary; however, these services provide the 

parties more control over the process and can effectively resolve a case. Also, resolving a case 

through ADR procedures can save time and reduce costs for the appellant, their agency, MSPB, and 

the Government (as compared to the more formal regulations and procedures involved with 

adjudication on the merits).
22

Mediation Appeals Program 

The Mediation Appeals Program offers the services of the agency’s trained and certified mediators 

as an alternative to the formal appeal processes and procedures of MSPB’s regulations. Mediators 

facilitate a discussion between the parties in a confidential setting to help them identify issues and 

barriers to an agreement that will aid in resolving their disputes and settling the appeal quickly, 

economically, and to the benefit of all concerned. Unlike traditional mediation, MAP charges no 

fees. Both parties must agree to its use before the appeal will be accepted for the MAP process, and 

both must agree on its resolution before any settlement is concluded. Unlike the traditional appeal 

process, the parties control the result of the case under the skilled guidance of the mediator, who 

plays no role in deciding the appeal should they not reach an agreement. Importantly, because most 

mediations occur near the beginning of adjudication, MAP saves time and money for Federal

employees and agencies who resolve their cases through this process. 

Because of these advantages, MAP has become a popular and successful program, as shown by the 

greater number of cases that have been mediated almost every year since the program’s inception. 

Further, MAP mediators successfully settle more than half of the appeals referred to mediation. 

Moreover, even when the case ultimately is resolved by an AJ’s decision, the mediation process 

often helps sharpen the parties’ focus on the matters truly in dispute and the resolution they seek. 

When mediators asked parties to complete evaluations at the end of each mediation, more than 95% 

stated they would use MAP again.

Merit Systems Studies and OPM Oversight 

The Board has the statutory responsibility to conduct studies of the civil service and other merit 

systems in the executive branch and submit the resulting reports to the President and Congress. The 

studies support strong and viable merit systems, which protect the public’s interest in a high-quality, 

professional workforce managed under MSPs and free from PPPs. The studies are based on 

objective, independent research that assesses and evaluates Federal merit system policies, operations, 

and practice from a long-term perspective. This function, in conjunction with the agency’s 

adjudication of individual appeals and its authority to review OPM regulations, ensures that the 

Board has the full legal authority necessary to oversee Federal merit systems at the systemic level and 

to remedy PPPs on an individual level. MSPB studies address the variety of challenges facing the 

Federal Government in managing its workforce.

Publications Issued between FY 2021 – FY 2023 

The most recent reports were transmitted to the President and Congress in December 2022 and 

February 2023. Prior to that, no reports had been submitted since the loss of quorum in January 

2017. In addition to regular editions of the Issues of Merit newsletter, MSPB’s OPE issued the 

following report publications over the past few years: 

Perceptions of Prohibited Personnel Practices: An Update (February 2023). This report analyzes survey data 

from 2010, 2016, and 2021 to track the prevalence of PPP perceptions, address the roles of the 

perceived offenders, and explain the potential consequences of a culture where PPPs are 

perceived.
23

Sexual Harassment in Federal Workplaces: Understanding and Addressing the Problem (December 2022). This 

report evaluates the prevalence of sexual harassment in Federal workplaces and Federal agency 

efforts to prevent and respond to such harassment.

U.S. Merit Systems Protection Board Research Agenda 2022-2026 (September 2022) articulates a research 

agenda that broadly defines the topics that MSPB considers most important and promising for 

study in the near term. OPE did extensive stakeholder outreach to select 44 topics across 6 

major areas of research to drive OPE research through 2026: Defending merit; Building and 

Effective Workforce; Recruitment and Hiring; Pay and Performance Management; Supervision 

and Leadership; and OPM Oversight.

Confidence in Ability to Perform Successfully (September 2021). This research brief discusses how 

organizations respond to unforeseen challenges and opportunities and are greatly influenced by 

how individual Federal workers think about the consequences of their own actions.

Agency Leader Responsibilities Related to Prohibited Personnel Practices (May 2021) discusses selected 

responsibilities assigned to the heads of Federal agencies by civil service law, such as to promote 

the prevention of PPPs, protect whistleblowers, and be accountable for proper exercise of 

personal authority. This research brief places these responsibilities in the context of the broader 

goal of a merit-based civil service and outlines the extent to which they can—and in some cases 

cannot—be delegated.

Determining an Acceptable Level of Competence for Step Increases (April 2021) reviews data and practices 

related to the WGI, a periodic fixed-pay increase that is granted provided that the employee 

performs at “an acceptable level of competence.” This research brief explores factors that are 

important to the WGI process, the role of the WGI in addressing under-performance, and some 

lessons learned for agencies to consider.

Direct-Hire Authority Under 5 U.S.C. § 3304: Usage and Outcomes (February 2021) discusses Federal

agency use of direct hire authorities (DHAs): streamlined procedures to appoint new employees 

without regard to selected merit system and public policy provisions, including ranking and 

veterans’ preference. This research brief then looks more closely at the DHA covered under 

5 U.S.C. § 3304(a)(3) which is approved and overseen by OPM. As discussed, although agencies 

believe that section 3304 DHAs are useful, their vision of the authority’s purpose and use 

appears to differ from OPM’s.

The Importance of Job Fit for Federal Agencies and Employees (October 2020). This research brief draws on 

professional literature and selected items from the 2016 Merit Principles Survey (MPS) to 

describe three distinct ways employees may fit with their job; discusses how job fit relates to 

workplace outcomes, such as job satisfaction, employee engagement, performance appraisal 

ratings, and intention to leave; and outlines actions in areas such as job design, hiring, training, 

and performance management that might help Federal managers and employees improve job fit.
24

Other Studies Activity

Planning is underway for a FY 2024 Merit Principles Survey that will provide data to support several 

topics on the research agenda, such as, whistleblowing protections, fair and equitable treatment in 

the Federal workplace, employee engagement, supervisory and employee challenges with 

performance management, and dual career tracks for supervisors and technical specialists.

Information Technology 

MSPB’s Office of Information Resources Management (IRM) designs, develops, implements, and 

maintains the agency’s IT infrastructure, systems, and cybersecurity program. IRM's mission is to 

support the modern, efficient, and cost-effective use of IT at MSPB. Our vision—supported by a 

number of active projects—is to migrate all MSPB business systems to a cloud-based architecture. 

IRM provides technical and operational support to MSPB to guarantee IT efficiency, effectiveness, 

compliance, and cybersecurity to enable the agency’s mission. 

Human Resources 

MSPB contracts with USDA’s APHIS for selected HR administrative and operational services 

through an interagency agreement. The agreement is developed between the two agencies and 

monitored within MSPB’s Office of Financial and Administrative Management.

MSPB contracts with Federal Occupational Health (FOH), a service unit within the U.S. 

Department of Health and Human Services’ Program Support Center, to provide basic occupational 

health services to all its employees throughout the country. In addition, the agency contracts with 

FOH to offer all employees access to the Employee Assistance Program (EAP). The EAP assists 

agency employees by providing both prevention and intervention for employee problems, which 

ultimately improves employee health, functioning, and workplace performance. MSPB’s agreement 

with FOH provides for a comprehensive EAP, delivering short-term, problem-focused counseling 

and a variety of services. While many health and wellness activities and accommodations are not 

equally available to each employee with respect to workplace or onsite availability of services, the 

agency does strive to ensure that each employee understands that it fully supports a healthy and safe 

workplace for all employees. 

Additionally, it is of the utmost importance to MSPB leadership that the agency hires and retains a 

diverse and highly qualified legal, research, analytical, and administrative workforce to support 

MSPB’s mission now and in the future. 

Financial Management 

MSPB has initiated cross-servicing agreements with the Treasury Department’s BFS for its 

accounting, financial auditing, purchasing, and travel-related services and support. Since 2002, BFS 

has processed MSPB’s administrative payments and prepared its accounting reports. The Board has 

received unqualified/unmodified opinions on its audits since the agency has been subject to audits 

of its financial statements. 

In addition to the agreement in place for personnel services, MSPB contracts with USDA’s NFC for 

processing payroll and payroll-related activities, including earnings and leave statements, W-2 
25

information, and debt management. The cross-servicing relationships with these organizations have 

provided MSPB with timely responses and more accurate processing of information from larger 

pools of knowledgeable staff than would be possible with a smaller in-house staff alone. BFS, 

APHIS, and NFC have the resources to stay current with the latest technologies, thereby providing

these services efficiently and economically.

Equal Employment Opportunity 

MSPB’s Office of Equal Employment Opportunity (OEEO) plans, implements, and evaluates the 

agency’s affirmative employment programs and initiatives; advises senior executives, managers and 

supervisors about these programs and initiatives; oversees diversity and inclusion initiatives; and 

provides all employees training on rights and remedies available under the anti-discrimination laws 

and whistleblower protection laws. OEEO provides equal employment opportunity counseling, 

formal complaint processing, and ADR services to current and former employees and applicants 

who allege discrimination. OEEO evaluates and reports MSPB’s complaint data to Congress, 

EEOC, OPM, and other external stakeholders; and workforce demographics by occupation and 

grade to the EEOC. The EEO Director also coordinates MSPB’s Diversity and Inclusion Council.
26

Organization Chart 

Human resources support services are provided by the U.S. Department of Agriculture’s (USDA) Animal and 

Plant Health Inspection Service Business Services. 

Payroll services are provided by USDA’s National Finance Center. 

Accounting services are provided by the Department of the Treasury’s Bureau of the Fiscal Service. 

Office of Administrative Law Judge (ALJ) functions are performed by ALJs employed by the U.S. Coast 

Guard and Federal Trade Commission and the under reimbursable interagency agreements.
27

List of Abbreviations and Acronyms

ADR Alternate Dispute Resolution 

AJ Administrative Judge

ALJ Administrative Law Judge

APHIS Animal and Plant Health Inspection Service

BFS Bureau of the Fiscal Service

CSC Civil Service Commission

CSRA Civil Service Reform Act of 1978

DHA Direct Hire Authority

EAP Employee Assistance Program 

EEO Equal Employment Opportunity 

EEOC Equal Employment Opportunity Commission 

FBI Federal Bureau of Investigation

FedRAMP Federal Risk and Authorization Management Program 

FOH Federal Occupational Health

FTE Full Time Equivalent

FY Fiscal Year

GPO Government Publishing Office

GSA General Services Administration 

HQ Headquarters

HR Human Resources

IRM Information Resources Management

IT Information Technology

MAP Mediation Appeals Program

MPS Merit Principles Survey

MSPs Merit System Principles
28

MSPB Merit Systems Protection Board

NDAA National Defense Authorization Act 

NIST National Institute of Standards and Technology

NFC National Finance Center

OAC Office of Appeals Counsel

OEEO Office of Equal Employment Opportunity

OMB Office of Management and Budget

OPE Office of Policy and Evaluation

OPM Office of Personnel Management

OSC Office of Special Counsel

PFR Petitions for Review

PIP Performance Improvement Plan

PPPs Prohibited Personnel Practices

PUMP Providing Urgent Maternal Protections for Nursing Mothers Act

PWFA Pregnant Workers Fairness Act

RIF Reduction in Force

TSA Transportation Security Administration

TSO Transportation Security Officers

USDA U.S. Department of Agriculture

VA Department of Veterans Affairs

WGI Within Grade Increase

WPA Whistleblower Protection Act

WPEA Whistleblower Protection Enhancement Act of 2012
29

FY 2024 Program Increases/Decreases from FY 2023 Enacted Budget

Merit Systems Protection Board

(Dollars in Thousands)

Salaries and Expenses

FY 2023 Enacted FY 2024 Request

Base $52,000 $52,000

Maintain Current Services 

Federal Pay 30,643 30,643

Federal Pay Proposal (5.2%) 0 1,722

Promotions and Within Grade Adjustments 195 136

Benefits 9,740 9,740

CSR&D Fund 2,345 2,345

Inflationary Adjustments 

GSA Space Rental Cost 3,600 3,914

Communications & Utilities 1,145 1,134

Government Services 1,650 1,920

Maintenance of Equipment and Software 336 726

Equipment/Lease Improvement 320 320

Other Services 1,276 1,276

Supplies and Materials 359 351

Maintenance of Facilities 26 22

Rental Payments to Others 65 121

Travel of Persons 200 200

Printing and Reproduction 64 37

Transportation of Things 36 26

Current Services Total $52,000 $54,633

Program Changes (Increases Decreases) 

HQ Adjudication Staff (14 Unfunded Vacant Positions) 2,667

Regional Adjudication Staff (10 Unfunded Vacant Positions) 1,793

Management Support Staff (2 Unfunded Vacant Positions) 296

New E-Appeal Business Intelligence and Reporting 222

New E-Appeal Data and Cloud Security 145

Cybersecurity Implementation per EO 14028 1,499

IT Hardware Refresh (Phased Laptop Lifecycle Replacement) 369

Decommissioning of Legacy E-Appeal Applications (301)

Travel Increase for In-Person Hearings and Mediations 210

Program Increases/Decreases 6,900

Total Appropriated $52,000 $61,533

Projected Available Carryover as of February 2023 495 0

Total Amount Available $52,495 $61,533

Total FTEs 210 236