U.S. Merit Systems Protection Board

Congressional 

Budget

Justification

FY 2021

Submitted to the

Committee on Appropriations

February 2020
Table of Contents

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

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

External Events Affecting MSPB Operations.............................................................................................4

FY 2021 Budget Request ..........................................................................................................8

Appropriation Language..................................................................................................................................8

Strategic Goals and Objectives.......................................................................................................................8

FY 2021 Request by Object Class..................................................................................................................9

Schedule O Object Classification.................................................................................................................13

Schedule Q Employment Summary ............................................................................................................14

About MSPB...................................................................................................................................................14

Board Organization........................................................................................................................................14

Providing and Using Administrative Data for Statistical Purposes.........................................................14

Adjudication ....................................................................................................................................................15

Mediation Appeals Program ........................................................................................................................16

Merit Systems Studies and OPM Oversight ...............................................................................................16

Publications Issued in FY 2018 and FY 2019 ............................................................................................17

Other Studies Activity....................................................................................................................................18

Information Technology................................................................................................................................18

Human Resources ..........................................................................................................................................18

Financial Management ...................................................................................................................................19

Equal Employment Opportunity .................................................................................................................19

Organization Chart.........................................................................................................................................20
1

The U.S. Merit Systems Protection Board

Congressional Budget Justification

Fiscal Year 2021

Introduction

The U.S. Merit Systems Protection Board (MSPB) values the President’s commitment to fiscal 

discipline and reducing the national debt. In examining MSPB’s fiscal year (FY) 2021 budgetary 

needs, and after considering the significant internal and external factors affecting the agency, MSPB 

is exercising its statutory budget authority by submitting a bypass request. MSPB requests that it 

continue to be funded at the FY 2020 enacted level of $46,835,000, which includes a $2,345,000 

transfer from the Office of Personnel Management’s (OPM) Civil Service Retirement and Disability 

Fund. Additionally, MSPB requests to retain two-year budget authority permitting funds to remain 

available until September 30, 2022. This request is in lieu of the FY 2021 President’s Budget 

Request of $42,154,000, including $2,345,000 from OPM’s Civil Service Retirement and Disability 

Fund, to expire at the end of fiscal year 2021.

In preparing the FY 2021 request, MSPB performed a thorough review of its resource needs. 

Because personnel costs are the largest component of MSPB’s budget, a reduction in the agency 

funding level, if enacted, would result in critical position reductions. This would have a direct 

impact on MSPB’s mission, contributing to a significant increase in processing time for initial 

appeals and petitions for review (PFR), impeding the ability to conduct special studies of the civil 

service, and severely limiting MSPB’s ability to provide outreach and education services. 

Funding reductions would have a particularly dire impact given several internal factors currently 

affecting MSPB’s operations. Those include the current lack of a quorum of Board members, which 

has resulted in a growing PFR backlog; an ongoing information technology (IT) modernization; and

a large percentage of retirement-eligible MSPB employees, making human capital planning more 

important now than ever. 

In addition to these significant internal factors affecting MSPB, there are also several external factors 

that have affected MSPB’s funding needs and are likely to continue to do so. External factors 

include laws enacted by Congress; Executive Order 13839, which has resulted in fewer settlements 

and may lead to increased hearings and, thus, longer case processing times and additional work for 

MSPB’s administrative judges; and Government-wide reorganizations and budget reductions,

resulting in additional workload. 

Given all of these factors, reductions to MSPB’s current funding level would have a direct adverse 

impact on the agency’s ability to protect the Federal merit systems, ensure due process, promote 

Government-wide merit system principles (MSPs), and prevent prohibited personnel practices 

(PPPs). Therefore, MSPB is requesting that its funding level for FY 2021 be held at the FY 2020 

level and that it retain its two-year budget authority. 

MSPB appreciates the appropriations it has received over the last several years, and that Congress 

recognizes the unique challenges MSPB faces. 
2

Internal Challenges Affecting MSPB Operations

As referenced above, MSPB recognizes the financial challenges facing the Government and the 

increasing pressure to cut Federal spending. In addition to the immediate and direct negative impact 

that a $2,336,000 reduction in funding and the removal of two-year spending authority would have 

on MSPB operations, there are a number of internal challenges outlined below impacting 

MSPB’s operations. 

Lack of Board Quorum

On January 8, 2017, the Board lost its quorum of members.1 Although agencies and appellants can 

file PFRs of administrative judges’ (AJ) decisions with the Board, the Board cannot issue decisions 

on PFRs unless it has a quorum. Since the loss of quorum, the number of pending PFR appeal 

cases has grown into a significant backlog. As of January 31, 2020, 2,586 PFRs are pending at 

MSPB headquarters.

2

 

Once a quorum is restored, and the Board can issue decisions again, historical precedent suggests 

there will be significant additional workload for MSPB. Historically, 11% of the Board’s PFR 

decisions in a typical year are remanded to the AJs, which results in further adjudication. With the 

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

above-average percentage of cases may be remanded to the AJs in the regional and field offices. 

Moreover, additional remands may result as the new Board issues regulations and precedent 

concerning several new statutes that have become law during the period MSPB has lacked a quorum. 

For all of these reasons, an above-average percentage of recommended decisions drafted by career 

staff also may require additional revision prior to issuance at the headquarters level, which would 

further divert resources from adjudication of newly-filed PFRs.

In addition to not issuing decisions that require Board or member vote, MSPB cannot release study 

reports when a quorum is not present. MSPB conducts objective, independent 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. Subject to the approval of the Board 

members, MSPB research, summarized in formal reports to the President and Congress, is expected 

to address topics such as sexual harassment in the Federal workplace, whistleblower protections, 

dealing with poorly-performing employees, and the effectiveness of the human resources (HR)

workforce. In addition, MSPB’s research agenda, which was last revised in 2015, is in need of 

another update. MSPB solicited ideas for studies from Federal employees and supervisors, unions 

and other employee groups, agency Chief Human Capital Officers, other stakeholders, and the 

public in May 2019. MSPB will have a proposed list of research topics for the new Board members 

to consider when they arrive.

The updated research agenda will determine MSPB’s studies workload for the next few years, 

including FY 2021. MSPB’s studies program needs to remain fully staffed so that it can be 

 

1 MSPB has been without any Board members since March 1, 2019. The President’s Board nominees are currently pending before the 

U.S. Senate, and the agency continues to operate under its Continuity of Operations Plan, under which MSPB’s General Counsel 

serves as the agency’s acting chief executive and administrative officer.

2 During this period, MSPB has been able to process 39 requests to withdraw PFRs in certain limited circumstances. The vast 

majority of appellants have opted to wait for adjudication of their PFRs by a new Board.
3

responsive to the priorities of the new Board members. Some of the studies that are likely to be 

undertaken when the new Board members arrive will require conducting surveys. MSPB has 

procured its own survey platform in order to avoid relying on a new contract for each survey, which 

should shorten the timeline for MSPB survey activity and make each survey more cost-effective. 

The research function, in conjunction with MSPB’s adjudication of individual appeals and 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 absence of a quorum has impacted 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, a number of changes to MSPB’s regulations

have become necessary to ensure they are in compliance with newly-enacted statutes; as well as, to 

drive or reflect improvements in MSPB’s procedures. Once a quorum is regained, significant 

resources will need to be devoted to the process of updating MSPB’s regulations.

Retirement Eligibility and Human Capital Planning

MSPB received enacted budgets for FYs 2014-2019 that allowed the agency to build and sustain a 

sufficient workforce to perform its statutory functions effectively and efficiently. Yet nearly 30% of 

MSPB employees, including approximately 40% of AJs and adjudication managers involved with 

processing initial appeals are eligible to retire by the end of FY 2021 (through 2022, the percentages 

increase to 35% and 47%, respectively). Budget reductions would result in an inability to backfill 

these and other critical vacancies, which would slow case processing times—including processing 

times mandated by statute and regulation. Such a reduction in MSPB’s workforce would also limit 

the capacity for outreach and education services, which play a key role in the effectiveness and 

efficiency of MSPB’s adjudication and studies functions by ensuring agencies understand the Board’s 

role and processes and interact in a timely and responsive way with MSPB. Similar benefits accrue 

to various professional groups to whom MSPB has presented outreach programs. MSPB’s outreach 

services also improve efficiency and effectiveness throughout the Federal Government by helping 

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

of the civil service. 

MSPB’s IT Modernization

In FY 2019, MSPB began modernizing its core business applications, starting with developing a new 

case management workflow system to process and track each initial appeal and PFR filed with the 

agency. This updated functionality would replace MSPB’s e-Appeal Online system and modernize 

the agency’s document management and document assembly capabilities. The new system would 

replace several legacy systems for these functions, which are at or nearing end-of-life and prevent 

MSPB from achieving 100% electronic adjudication of appeals. The implementation of the new 

applications is scheduled to continue through FY 2020 and into FY 2021 as MSPB retires legacy 

systems and introduces a new survey platform, refreshes laptops, implements Windows 10, and 

modernizes telephone and video conferencing systems (both of which are important cost-saving 

resources in adjudication of initial appeals). In addition, MSPB would be able to decommission 

most of its on-premises data center, since the modernized applications will be in the cloud. The 

agency will increase internet bandwidth to support cloud adoption. However, modernization would 
4

have to be completely halted if MSPB’s two-year spending authority is revoked and a budget cut is

imposed, as funding resources would be reallocated for personnel costs.

External Events Affecting MSPB Operations

There are several external factors that have impacted and could further affect MSPB’s operations in 

the future, resulting in the need for additional resources. 

Enactment of Statutes by Congress

Whistleblower Protection Laws

From the time the Civil Service Reform Act of 1978 established the original eleven PPPs, Congress 

added only one additional PPP in the ensuing twenty years.

3

 In the past seven years, Congress has 

added two additional PPPs, both of which were prompted by concerns for whistleblower 

protection.4 Since the enactment of the Whistleblower Protection Enhancement Act of 2012 

(WPEA), whistleblower appeals adjudicated in the regions and PFRs to the Board have increased

significantly.5 In fact, 22% of all PFRs filed in FY 2019 involved whistleblower claims. 

One reason for this increase is regular expansions in the scope of whistleblower protections over the 

past several years.

6

 Most recently, the National Defense Authorization Act (NDAA) for FY 2020, 

enacted December 20, 2019, explicitly protected whistleblower disclosures to Congress, including 

some classified disclosures.7 This will likely result in more appeals to MSPB, as well as more cases 

proceeding through the jurisdictional stage to hearings on the merits.

8

 Confusion over how to 

 

3 5 U.S.C. § 2302(b)(11), codified by the Veterans Employment Opportunities Act of 1998, Pub. L. No. 105-339, 112 Stat. 3182, 3187 

(1998).

4 The Whistleblower Protection Enhancement Act of 2012 established a 13th PPP (5 U.S.C. § 2302(b)(13)), implementing or enforcing

any nondisclosure policy, form, or agreement lacking a specific paragraph, which makes reference to whistleblower protections. Pub. 

L. No. 112-199, 126 Stat. 1465, 1467 (2012). This codified a longstanding appropriations rider introduced by Senator Chuck Grassley 

in 1988. See S. Rep. No. 112-155, at 16 (2012). The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 established as a 14th

PPP (5 U.S.C. § 2302(b)(14))accessing the medical records of another employee or applicant for employment “as a part of, or 

otherwise in furtherance of, any conduct described” in the other PPPs listed at 5 U.S.C. § 2302(b), such as whistleblower retaliation. 

Pub. L. No. 115-73, 131 Stat. 1235, 1236 (2017). This was a response to reports that VA employees were accessing the medical 

records of VA whistleblowers in an attempt to discredit them as a form of retaliation. See S. Rep. No. 115-44, at 8-9 (2017).

5 According to MSPB’s Annual Reports from FY 2008 through FY 2012 (pre-WPEA enactment), the Board adjudicated an average of 

67 IRA PFRs each of those fiscal years. Although MSPB has lacked a quorum since January 2017, and thus has been unable to issue 

decisions on PFRs, receipts of IRA PFRs can be tracked. As reported in MSPB’s APR-APP for FY 2018-2020, MSPB received 116 

IRA PFRs in FY 2018. Similarly, the regions adjudicated an average of 562 IRA cases per year from FY 2008 through FY 2012, and 

716 per year from FY 2013 through FY 2018, a 27% increase.

6 For example, in just 2017 alone Congress enacted the Follow the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017); the Dr. Chris 

Kirkpatrick Whistleblower Protection Act of 2017; and the Office of Special Counsel Reauthorization Act, passed as part of the 

National Defense Authorization Act for FY 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1615 (2017).

7 Pub. L. No. 116-92, § 5721 (2019).

8 Federal employees’ right to provide information to Congress has been protected since the Lloyd-LaFollette Act, passed as Section 6 

of the Postal Service Appropriations Act of 1912 (Pub. L. No. 336, 37 Stat. 539, 555 (1912)) and recodified by the CSRA as 5 U.S.C. § 

7211. Thus, even if a communication to Congress did not disclose “any violation of any law, rule, or regulation, or gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” (5 

U.S.C. § 2302(b)(8)(B)), it might constitute a violation of the 12th PPP, “taking or failing to take any other personnel action if the 

taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system 

principles.” 5 U.S.C. § 2302(b)(12). However, Congress has only authorized individual right of action (IRA) appeals—appeals 

brought to MSPB after exhausting the OSC process but without OSC’s continued involvement—for the explicit anti-retaliation PPPs, 

(b)(8) and (b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a). The amendment of (b)(8) to add Congress now covers those disclosures 

under the IRA provisions and simplifies the analysis required to find jurisdiction.
5

properly disclose classified information to Congress could also lead to increased improper disclosure 

disciplinary actions and resulting new appeals.

The WPEA also increased the complexity of adjudicating whistleblower cases. Prior to the WPEA, 

many whistleblower claims failed under then-current case law because the disclosure at issue was 

made to the 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 additional issues were never adjudicated. 

Pursuant to the WPEA, such disclosures may now be found to be protected, and the legal analysis 

proceeds to the second and frequently third steps. Accordingly, a hearing is required in a greater 

number of cases, and the legal analysis required for whistleblower cases under the WPEA is 

lengthier, more complex, and more time-consuming. 

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 additional resources to adjudicate them.

Expanded Judicial Appeal of Whistleblower Claims

As part of the WPEA, on a pilot basis, Congress permitted employees with cases involving 

whistleblower reprisal 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 (Federal Circuit), as previously had been the case. Congress 

subsequently extended the pilot before making it permanent on July 7, 2018.9 This has complicated 

adjudication of WPEA-covered appeals at the regional and PFR levels because rather than being 

bound to follow legal precedent from one court—the Federal Circuit—MSPB is now potentially

bound to follow the legal precedent from multiple Federal circuit courts, which may conflict with 

one another. The enactment of permanent all-circuit review has complicated MSPB’s defense of its 

decisions in these courts, in addition to requiring periodic travel by MSPB attorneys to various 

venues across the country.

Discipline for Whistleblower Retaliation

Both the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 and the Office of Special 

Counsel (OSC) Reauthorization Act contained provisions mandating proposed discipline for any 

supervisor found by the head of an agency, OSC, MSPB, an ALJ, a Federal judge, or an inspector 

general to have committed whistleblower retaliation.

10

 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.11 While 

suspensions of 14 days and under are not otherwise appealable to MSPB, removals are. This 

provision represents a significant transformation in how agencies are required to respond to 

retaliators. On September 17, 2019, OPM issued proposed implementing regulations that will have 

the likely effect of significantly increasing awareness of and compliance with the provision 

throughout Government, in turn increasing appeals to MSPB.12

 

9 All Circuit Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894 (2014); All Circuit Review Act, Pub. L. No. 115-195, 132 

Stat. 1510 (2018).

10 Codified at 5 U.S.C. § 7515.

11 5 U.S.C. § 7515(b)(1).

12 Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and 

Adverse Actions, 84 Fed. Reg. 48,794, 48,797 (Sept. 17, 2019) (to be codified at 5 C.F.R. pt. 752 subpt. A).
6

Administrative Leave Act of 2016

The Administrative Leave Act of 2016, enacted as part of the NDAA for FY 2017, expanded 

MSPB’s jurisdiction by adding to the possible grounds on which an employee might file an appeal.13 

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

new law also gave MSPB jurisdiction over an additional personnel action. Under 5 U.S.C. § 3322(a) 

and (c), if an employee who is under investigation resigns prior to the investigation’s resolution, and 

the investigation results in an adverse finding about that employee, the agency head must make a 

permanent notation about the adverse finding in the employee’s official personnel file. While still a 

relatively little-known provision, because this notation mechanism is mandatory and appealable, it is 

likely that over time numerous additional appeals and PFRs will result from this statute. The Act 

also provides appeal rights to dual status employees of the National Guard whose separation results 

from certain causes of action. This is a significant change in the law with respect to such employees 

and likewise, will result in additional appeals and PFRs, requiring additional resources.

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 201714

This law essentially replaced the Veterans Access, Choice, and Accountability Act of 2014 for 

purposes of the Department of Veterans Affairs (VA) Senior Executive Service appeals. It also 

changed the requirements for appeals of adverse actions taken against VA employees under this law, 

including how MSPB processes those appeals. Among the Act’s other significant changes, it lowers 

the standard of proof for VA adverse actions taken under 38 U.S.C. § 714 from preponderant to 

substantial evidence and may eliminate MSPB’s ability to mitigate penalties (an issue the Board has 

been unable to decide due to lack of quorum). The Act also contains a provision that is similar to 

the Government-wide requirement that discipline be proposed for supervisors found to have 

committed whistleblower retaliation, but expands the definition of what MSPB has previously 

viewed as a covered personnel action from those listed in 5 U.S.C. § 2302 to include matters like 

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

against an employee relating to participating in an audit or investigation by the Comptroller General. 

Overall, MSPB has seen an increase in the number of VA cases filed in MSPB’s regional and field 

offices since this law took effect.

Other External Factors

Executive Order 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit 

System Principles”

Section 5 of the May 25, 2018 Executive Order (EO) 13839, “Ensuring the Integrity of Personnel 

Files,” states:

Agencies shall not agree to erase, remove, alter, or withhold from another agency any 

information about a civilian employee’s performance or conduct in that employee’s 

official personnel records, including an employee’s Official Personnel Folder and 

 

13 Pub. L. No. 114-328, 130 Stat. 2000, 2460 (2016).

14 Pub. L. No. 115-41, 131 Stat. 862 (2017).
7

Employee Performance File, as part of, or as a condition to, resolving a formal or 

informal complaint by the employee or settling an administrative challenge to an 

adverse personnel action.

On September 17, 2019, OPM issued proposed regulations further implementing this provision.

15

 

The restriction disallows not only “clean record” settlements (i.e., settlements in which the appellant 

resigns in return for the agency removing from the appellant’s record documentation of the adverse 

personnel action the appellant suffered), but also any settlement agreement in which an action is 

mitigated, changed to a no-fault reason, or in any way changed or corrected without admission of 

error by the agency. The provision limits the potential for reaching an agreement and settling cases 

on terms both parties might otherwise find appropriate. This decreases the number of settlements 

parties before the MSPB will reach and likely will increase the number of hearings and the amount 

of related processing AJs will have to conduct in those cases that otherwise may have settled. 

Workload Resulting from Reorganizations

Several Federal agencies have announced or put into effect reorganization plans. Such changes will 

potentially cause furloughs, early retirement incentives (Voluntary Early Retirement Authority 

(VERA) and Voluntary Separation Incentive Payment (VSIP)), and the increased use of reductions 

in force (RIFs) by agencies, all of which would lead to an increase in appeals and PFRs because such 

actions may be appealed to MSPB.

 

15 Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and 

Adverse Actions, 84 Fed. Reg. 48,794, 48,796 (Sept. 17, 2019) (to be codified at 5 C.F.R. § 432.108).
8

FY 2021 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, $44,490,000, to remain available 

until September 30, 2022, and in addition not to exceed $2,345,000, to remain available until 

September 30, 2022, 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 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 2021 Congressional Budget Justification is structured based on the Board’s Strategic 

Plan. The agency’s performance goals cover the critical components of two strategic goals, and the

performance measures support the Board’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. 

1B: Enforce timely compliance with MSPB decisions. 

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

management issues.

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

Management, as appropriate.
9

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: Inform, promote, and/or encourage actions by policy-makers, as appropriate, that strengthen 

Federal merit systems laws and regulations.

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

workplace through successful outreach.

2C: Advance the understanding of the concept of merit, the MSPs, and the PPPs through the use 

of educational standards, materials, and guidance established by MSPB. 

FY 2021 Request by Object Class

MSPB’s FY 2021 bypass request of $46,835,000 includes the OPM transfer of $2,345,000 from the 

Civil Service Retirement and Disability Fund and reflects no increase in funding as compared to the 

FY 2019 and FY 2020 enacted levels. With this level of funding, the Board will continue to 

maintain quality services in support of the agency functions and have the ability to continue to meet 

the goals and objectives of the strategic plan in an effective and efficient manner. Any reductions 

will significantly impact MSPB’s ability to meet its mission in protecting the MSPs and promoting an 

effective Federal workforce free of PPPs.

A discussion of changes from the FY 2020 Enacted level is outlined below:

Personnel Compensation & Benefits – an increase of $920,000

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

11 Personnel Compensation $27,600 $28,320 $720

12 Benefits $8,200 $8,400 $200

Approximately 80% of MSPB’s funding is for personnel compensation and benefit costs, which 

make up the largest percentage of the agency’s budget submission. The increase in funding

represents pay raise, cost of living increase, and the cost to mainain the 235 FTE staffing level. Any 

reduction in resources would result in a reduction in workforce, which would affect MSPB’s ability 

to maintain a highly qualified workforce at the requested FTE level. 
10

Travel & Transportation of Persons – no change

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

21 Travel & Transportation 

of Persons $200 $200 $0

Since travel costs have stabilized over the past three years due to increased efforts to use video 

teleconferencing, MSPB is reflecting no change. Although there is less need for AJs to travel to 

hearing sites located a considerable distance from the various regional and field offices, this funding 

will be needed to support Board members’ travel needs. Historically, Board members make regional 

and field office visits, attend mission-related conferences, and request that regional directors 

periodically attend meetings at headquarters. Additionally, as a result of the WPEA and the passage 

of the All Circuit Review Act, which extends to all U.S. circuit courts jurisdiction over appeals 

covered by the WPEA, MSPB’s attorneys have periodically been required to travel to various 

Federal courts of appeals to represent the agency—something that was rarely required before the 

enactment of the WPEA. MSPB cannot predict or control the number of court-ordered hearings or 

oral arguments that might require travel.

Transportation of Things – no change

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

22 Transportation of Things $45 $45 $0

This category covers freight related costs and various courier services.

Rent, Communications, & Utilities – a decrease of $1,084,000

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

23 Rent, Communications & 

Utilities $4,209 $3,125 ($1,084)
11

The agency makes rental payments to the General Services Administrations (GSA) for office space 

at MSPB’s Washington, D.C. headquarters, as well as all regional and field offices. With the award 

of the new lease agreement for headquarters, MSPB was granted reduced rent during the first year of 

the agreement, resulting in a savings for that period. 

Printing – no change

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

24 Printing $75 $75 $0

Two Government Publishing Office printing programs (copying case files and printing the Issues of 

Merit newsletters) are used by MSPB. 

Other Contractual Services – a decrease of $135,000

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

25 Other Contractual 

Services $3,633 $3,498 ($135)

This object class includes the Agency’s Reimbursable Service Agreements (RSA) with the U.S.

Treasury Department’s Bureau of Fiscal Service (BFS) for accounting, purchasing, and travel-related 

services; the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS)

for personnel services; and the National Finance Center (NFC) for payroll services. Other RSAs 

included in this object class fund are agreements with the U.S. Coast Guard and Federal Trade 

Commission for services of administrative law judges (ALJs), as well as agreements with the 

National Archives and Records Administration for records storage.

Additionally, this category includes court reporting services, employee training, IT hardware and 

software maintenance renewals, software license renewals, operation and maintenance of non-IT 

equipment, and miscellaneous services. MSPB anticipates cost savings on equipment maintenance.
12

Supplies & Materials – an increase of $334,000

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

26 Supplies & Materials $175 $509 $334

An increase of $334,000 in supplies & materials is requested to meet inflationary increases for FY 

2021, as well as the increased costs of electronic subscriptions (e.g., Westlaw and legal research 

materials) and IT cloud services (e.g., Microsoft Office 365 and Azure, and Listserv subscriptions). 

Equipment – a decrease of $35,000

MOC Description

FY 2020

Enacted

(000)

FY 2021

Request

(000)

Increase 

(decrease) 

over FY 2020

(000)

31 Equipment $353 $318 ($35)

In the past, MSPB was able to replace equipment such as servers, laptops, copiers, printers, 

scanners, and video teleconferencing equipment that was damaged or end of life. As a result of 

budget restrictions and IT modernization, MSPB is decreasing the equipment line item by $35,000. 

However, MSPB will allocate funding to replace equipment as it breaks down or exceeds its 

useful life.
13

Budget Schedules - Schedule O - Object Classification (In Thousands of Dollars)

FY 2019

Actual

FY 2020

Enacted

FY 2021

Request Change

Direct Obligations:

Personnel Compensation $25,890 $27,600 $28,320 $720

Civilian Personnel Benefits 8,146 8,200 8,400 200

Travel of Persons 153 200 200 0

Transportation of Things 89 45 45 0

Rental payments to GSA 3,833 3,284 2,200 (1,084)

Rental Payments to Others 160 65 65 0

Communications, Utilities, and 

Miscellaneous Charges 928 860 860 0

Printing and Reproduction 38 75 75 0

Other Services 1,618 1,425 1,425 0

Other Purchases of Goods and 

Services from Government 

Accounts 1,839 1,650 1,650 0

Maintenance of Facilities 174 35 35 0

Maintenance of Equipment 750 523 388 (135)

Supplies & Materials 102 175 509 334

Equipment/Lease Improvement 1,714 353 318 (35)

Direct Obligation. . . $45,434 $44,490 $44,490 $0

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

Total New Obligations. . . $47,779 $46,835 $46,835 $0
14

Schedule Q - Employment Summary

FY 2019

Actual

FY 2020

Enacted

FY 2021

Request Change

Direct:

 Civilian full-time equivalent employment 190 220 220 0

Reimbursable:

 Civilian full-time equivalent employment 15 15 15 0

Total. . . 205

 

235 235 0

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 CSRA. The 

CSRA replaced the CSC with three new agencies: MSPB as the successor to the CSC in its quasijudicial 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 the MSPs and 

defined the PPPs.

Board Organization

The Board members are the Chairman, Vice Chairman, and Board Member. Board members are 

nominated by the President, confirmed by the Senate, and serve overlapping, non-renewable sevenyear terms. No more than two of the three Board members can be from the same political party. 

The Board members adjudicate the cases brought to the Board. The Chairman, by statute, is the 

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

through the Executive Director. The agency has its headquarters in Washington, D.C., 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.

For FY 2020, the agency was funded at 235 FTEs to conduct and support its statutory duties.

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 and are available 

at www.mspb.gov. The Annual Report contains summaries of significant opinions issued by 
15

MSPB’s reviewing courts, case-processing data for initial appeals, 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, 

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

Board’s work.

Adjudication

The majority of the 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 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 (USERRA), 38 U.S.C. § 4301 et seq.; the Veterans Employment Opportunity Act 

(VEOA), 5 U.S.C. § 3330a et seq.; the Whistleblower Protection Act (WPA), Pub. L. No. 101-12; the 

WPEA, Pub. L. No. 112-199; the DVA Accountability and Whistleblower Protection Act of 2017, 

Pub. L. No. 115-41; the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 

115-73; 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 within-grade salary increases; 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.

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 due process procedures called 

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

on all relevant matters, issues an initial decision. 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, D.C. 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 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.
16

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

parties in resolving their cases. Use of these services is voluntary, provides the parties more control 

of the process, and can result in effective resolution of a case. In addition, resolving a case through 

ADR procedures can save time and reduce costs to the appellant, agency, MSPB, and Governmentwide as compared to the more formal regulations and procedures involved with adjudication on 

the merits.

Mediation Appeals Program

The Mediation Appeals Program (MAP) 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 accord not be reached. Importantly, 

because almost all mediations occur near the beginning of adjudication, MAP saves time and money 

for the 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 

fact that a greater number of cases have been mediated almost each year since the program’s 

inception. Further, MAP mediators had been successfully settling more than half of the appeals 

referred to mediation, but as noted above, EO 13839 has adversely affected settlements. While 

mediators continue to settle a substantial portion of the lower number of appeals now being referred 

to MAP, greater time and effort must be expended by the mediator and the parties, and the number 

and percentage of successful settlements have decreased. Nevertheless, even where the case 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 were asking 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 the 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 authority to review human resource 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. 
17

Publications Issued in FY 2018 and FY 2019

No study reports have been transmitted to the President and Congress since the loss of quorum in 

early 2017. However, in addition to regular editions of the Issues of Merit newsletter, MSPB’s Office 

of Policy and Evaluation (OPE) issued the following non-study report publications:

Managing Employees to Perform Emotionally Laborious Work (July 2019) uses data from the 2016 Merit 

Principles Survey (MPS) which indicates that when employees need to hide their emotions, or 

pretend to feel other emotions, it has a relationship to emotional fatigue, a lower intent to 

remain in the position, fewer good performance behaviors, lower performance appraisal results, 

and reduced engagement. But, what can agencies do to reduce the need to pretend or hide 

emotions when the work itself is emotional? This brief uses examples from current agency 

practices to answer that question.

Remedying Unacceptable Performance in the Federal Civil Service (June 2019) explains that for decades, the 

Federal Government has been seeking useful means to address the issue of Federal employees 

whose performance at work is unacceptable. But, why do some employees perform badly, and 

how effective are various approaches in bringing about the necessary improvements in 

performance? This brief answers those questions and discusses what agencies can do about 

those answers.

The Perceived Incidence of Prohibited Personnel Practices (June 2019) describes the 14 PPPs with potential 

consequences for offenders who commit a PPP, examines whether agencies are truly preventing 

PPPs, and explains the consequences for the effectiveness of the civil service if employees 

believe that PPPs are allowed to occur. This research brief uses data from the 2016 MPS to 

discuss respondents’ perceptions that they have seen a PPP and the relationship between such 

perceptions and their views of a variety of workplace issues.

Improving Leadership Through Better Probationary Practices (May 2019) observes that when used properly, 

the probationary period is one of the most valid predictors of future success and can help ensure 

that the Federal Government has a cadre of the most qualified, competent leaders. This 

perspectives brief examines how the supervisory and managerial probationary periods are being 

used by agencies, identifies what barriers exist to using them more effectively, and builds on 

prior MSPB research to discuss what steps agencies can take to improve Federal leadership 

through better probationary practices.

The Roles of Feedback, Autonomy, and Meaningfulness in Employee Performance Behaviors (August 2018) uses 

selected data from MSPB’s 2016 and 2010 MPSs to build on previous MSPB research on 

employee engagement and motivation. Decades of social science research show that knowledgebased workers are more likely to think creatively and be motivated to perform well when 

provided a balance of feedback and autonomy. Feedback can help employees to see the 

importance of their work and help them know what efforts are more likely to lead to success. 

This research brief discusses the roles of feedback from supervisors, autonomy, and meaningful 

work and demonstrates their relationship to positive employee performance behaviors.

Improving Federal Hiring Through Better Assessment (July 2018) summarizes MSPB research on applicant 

assessment, identifies 10 factors for agencies to consider when investing in better assessment, 

reiterates the business case for Congress to appropriate funds to OPM for the development and 
18

administration of Government-wide applicant assessments, and presents information and agency 

perspectives on OPM’s USA Hire assessment suite.

Update on Sexual Harassment in the Federal Workplace (March 2018) summarizes Federal employee 

perceptions of sexual harassment in the workplace, based on MSPB’s 2016 MPS and previous 

MSPB surveys. In advance of a full report on the topic, this research brief presents preliminary 

findings on the incidence of sexual harassment and how employees respond to harassment. This 

publication has resulted in numerous requests from Federal agencies and Congress for additional 

information on MSPB’s research methods and results.

Building Blocks for Effective Performance Management (October 2017) presents selected results from the 

2016 MPS on the topic of performance management. The key finding is that organizations that 

believe they have the “building blocks” for performance—adequately trained supervisors,

sufficient resources, and usable performance standards and measures—are more likely to report 

a lower incidence of poor or substandard performance and more likely to have success in 

identifying and correcting such performance.

Other Studies Activity

OPE has gathered ideas from stakeholders for an updated research agenda, with the aim of 

presenting a proposed agenda to new agency leadership when they arrive. In addition, OPE staff is 

doing preliminary work in preparation for a Government-wide survey in 2020. 

Information Technology

MSPB’s primary mission is to provide for independent, non-partisan adjudication of appeals of 

personnel actions for Federal employees. Generally, about 50% of appeals filed with the agency are 

from pro se appellants—employees representing themselves. All appellants (represented or not) are 

expected to file an appeal and to respond to orders in a timely manner or risk having their cases 

dismissed. The Board’s current electronic filing system, e-Appeal Online, allows Federal agencies 

and appellants access to party filings and Board issuances through e-Appeal as soon as they are filed 

or issued. Parties who elect to file electronically through e-Appeal receive email notification of 

orders and issuances from MSPB instantaneously, rather than having to wait for service by regular 

mail. The e-Appeal system will be replaced by a new e-filing system as part of the modernization 

efforts in FY 2021, with enhanced capabilities for external and internal users.

MSPB’s Office of Information Resources Management develops, implements, and maintains the 

agency’s automated IT systems to help the agency manage its caseload efficiently and carry out its 

administrative and research responsibilities.

Human Resources

MSPB contracts with the U.S. Department of Agriculture’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.
19

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 of 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 the 

agency in addressing productivity issues by providing both prevention and intervention for 

employee problems, which ultimately improves employee health and functioning, as well as 

workplace performance. The Board’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 Board 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.

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. BFS has 

processed MSPB’s administrative payments and prepared its accounting reports since FY 2002. 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 of payroll and payroll-related activities including earnings and leave statements, W-2 

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, so they can provide 

these services more 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, 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 alternative 

dispute resolution services to current and former employees, as well as applicants who allege 

discrimination. OEEO also resolves and processes complaints filed by individuals who allege 

discrimination based on disability in their access to MSPB programs and activities. OEEO evaluates 

and reports MSPB’s complaint data workforce demographics by occupation and grade to Congress, 

the EEOC, OPM, and other external stakeholders. 
20

Organization Chart

CHAIRMAN MEMBER

General

Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices

Atlanta, Chicago,

Dallas,

Philadelphia,

Oakland, and

Washington, D.C.

VICE CHAIRMAN

Field Offices

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

HR Management services are provided by the USDA’s APHIS Business Services. Payroll services are provided by USDA’s NFC.

Accounting services are provided by the Department of the Treasury’s BFS. In FY 2019, ALJ functions were performed by ALJs 

employed by the Federal Trade Commission and the U.S. Coast Guard under reimbursable interagency agreements. 

U.S. Merit Systems Protection Board

Performance 

Improvement 

Officer