MSPB--A Record of Excellence In its first 20 years as an adjudicator, the MSPB has decided almost 200,000 cases. It has established a comprehensive body of precedential law to guide Federal agencies and employees. Its early decisions set key standards: the Board required judges to identify material issues of fact, set out the evidentiary basis for findings of fact, explain credibility determinations, address the burdens of proof, and support conclusions of law.
One of the far-reaching provisions of the CSRA authorized the Board to use settlement initiatives to resolve cases. Avoiding the litigation step--and the stress, loss of working time, and expenses that go with litigation--is particularly significant in workplace disputes where a continuing agency-employee relationship and open lines of communication are important. The MSPB has taken the lead in using alternative dispute resolution techniques to settle cases. Last year it settled a record high 54 percent of cases not dismissed on jurisdictional or timeliness grounds.  When cases must proceed to litigation, timeliness of decision-making is critical. Timely resolution of appeals of agency personnel actions benefits all parties, as well as the taxpayers who fund Government activities. The MSPB's record of timely decision-making is unmatched. The Board consistently processes cases through the initial appeal and decision stage within less than its self-imposed standard of 120 days. Even now, when an agency or an employee requests a full Board review of an initial decision, the total time for both stages of review is only about 10 months. Another important measure of the Board's performance is its record before the U.S. Court of Appeals for the Federal Circuit, the Board's principal reviewing court. In FY 1998, 92 percent of the Board's decisions were left unchanged by the court That enviable record has been consistent over the years.

The CSRA oversight requirement--envisioned as a neutral, broad assessment of the health of the merit systems--has proven to be an effective means to ensure that the hard questions are addressed, and even unpopular answers reported. The oversight responsibility ensures that the Board's role in protecting merit goes beyond remedial actions taken in response to individual employee appeals. Protection of merit is also assured by the fact that there is built into the MSPB an evaluation and long-range strategic planning mechanism for human resources issues. This mechanism is increasingly important as government downsizes, and as personnel functions are decentralized and deregulated.

Over the years, the Board has reported the good news--and the bad--on a range of issues critical to the operation of a merit system. The Board has taken an in-depth look at issues such as the Government's recruiting and selection processes, the quality of the workforce, performance management, workforce diversity, supervisory selection, employee development, temporary employees, and poor performers. On these and other issues, the MSPB has established benchmarks that are used to guide the inquiries of others both within and outside the Government. Most recently, Vice President Gore's National Partnership for Reinventing Government used some of the measures established by the Board when conducting its own Governmentwide survey of employees' attitudes towards reform.

Moving Into the 21st Century

In the next century, the MSPB anticipates continued pressures for the Government to provide better value for each tax dollar. We have already seen the effects of reexamining and refashioning how the Government operates--a Federal workforce smaller by almost 15 percent, fewer regulations, more delegated authority, and an emphasis on improved customer service. Such an environment demands continuing efforts to make the Board's work a positive force for better government.

The MSPB has taken the lead in streamlining its operations and positioning the agency to use technology to handle its caseload more efficiently. Although the Board hears cases throughout the world and has broad Governmentwide oversight responsibilities, it performs these responsibilities with about 250 employees--down 40 percent from 1983. Effectively handling the same or increased workload with so many fewer workers presents a major challenge for the Board as it moves into the 21st century.

To handle the continuing high volume of cases with a reduced staff, the MSPB has transformed its workplace, coupling technology with better use of its workforce. It has increased its employees' productivity through technology. It has retrained administrative employees to perform paralegal tasks and contracted out non-core functions like payroll and personnel. It has implemented family-friendly workplace concepts, from flexible work schedules to work-at-home arrangements. And, yes, the Board will be conducting business a year from now. It expects to complete Y2K validation by June 30, 1999.

The MSPB is currently working with contractors on a project that is designed to lead to a fully electronic environment in which appeals can be filed electronically or scanned into electronic files and all case files can be maintained electronically. The stacks of paper case files wheeled through MSPB offices in shopping carts will be replaced by electronic files in computer databases that can be accessed from employees' desks. Laws, legislative histories, regulations, and Board and Federal Circuit precedents will all be available instantly. The Board currently has a pilot project underway with the Federal Circuit to implement electronic filing in cases before the court.

The MSPB oversight staff is also increasingly making use of automation, including expanding use of the internet for both research and dissemination of its findings and recommendations.

On the cusp of the new century, the MSPB looks back with pride and forward with confidence. Whatever the new challenges, the MSPB is committed to the job it was first given by the President and the Congress 20 years ago--to protect Federal merit systems through fair and impartial adjudication of personnel matters and through studies designed to ensure that Federal human resources are managed according to the merit principles.

The summary that follows is a tribute to all the Board members and employees whose diligent efforts and wise choices over the years have brought us to the achievements of today and have equipped us well to meet the challenges of tomorrow.

Laying the Groundwork MSPB, 1979-1983

When the Board began operations in January 1979, it was staffed by 289 employees transferred from the Civil Service Commission. The field office structure of the Commission's Federal Employee Appeals Authority (FEAR) was also transferred to the Board. Along with those employees, the Board inherited a backlog of almost 5,000 cases. And, under the Reform Act, it received over 3,600 new cases.

Basic to the new adjudicatory system was the Board's commitment to provide appellants and agencies with well-written, well-reasoned decisions. It decided early on to require that all of its hearing officers be attorneys. To eliminate the delays previously associated with the handling of employee appeals, the Board set up an internal 120-day timeframe to resolve appeals. It established procedures to facilitate the discovery process, such as requiring agencies to submit the entire agency file as part of its response to the filing of an appeal. And, unlike those of the FEAA, the MSPB's decisions were precedential and published.

Just eight days after the effective date of the CSRA, the new Board published interim regulations governing its appellate procedures. Within three months, final regulations were in place. The regulatory framework established in 1979 has served well both the Board and the parties appearing before it., Indeed, this regulatory framework, amended over time to reflect changes and revised to use plain English, remains in place twenty years later.

The Board's regulations spelled out the two-level review process required by statute, the first level permitting a full hearing and the second providing review by the three member Board. Parties had a right to be represented before the Board. Regulations provided for discovery, the issuance of subpoenas, applicable burdens of proof, and payment of attorney fees. The Board also detailed the scope of its appellate jurisdiction, the information to be filed by the parties in an appeal, the authority of the hearing officers in conducting a hearing, and a prohibition against ex parte communications.

Early Decisions -The Legal Foundation

In its early cases, the Board took care to establish a sound substantive and procedural framework for the new personnel law. Both Griffin v. Department of Agriculture and Losure v. Interstate Commerce Commission provided significant rulings on agency reduction-in-force (RIF) actions. In Griffin, the Board concluded that it has no authority to review management considerations underlying agency discretion to conduct a RIF. In Losure, the Board set forth the rule that the burden of proof in demonstrating that RIF procedures have been properly invoked rests on the agency. Parker v. Defense Logistics Agency addressed agency denials within-grade increases, ruling that an agency must meet a substantial evidence standard of proof and that an appellant bears the burden of establishing an affirmative defense in alleging harmful error by the agency. The Board's new authority to award payment of attorney's fees to prevailing appellants was interpreted in a
seminal decision, Allen v. U.S. Postal Service. Requirements for the initial decisions issued by MSPB administrative judges (then called "presiding officials") were set forth in Spithaler v. OPM, and the Board's review of fact-finding by its administrative judges was described in Weaver v. Department of the Navy. In Douglas v. Veterans Administration, the Board established the basic precedent controlling an agency's selection of penalty in an adverse action case.

Since the Federal Circuit was created, it has allowed the Board's decisions to stand--either through dismissal of the case or affirmance of the Board's decision--in 92 to 97 percent of the MSPB cases reviewed.

Important to the development of a consistent and predictable body of civil service law was the judicial review scheme established by the CSRA. Previously, Civil Service Commission decisions could be appealed to Federal district courts and then to the circuit courts of appeals, resulting in diverse interpretations of civil service provisions. The CSRA placed review of MSPB decisions primarily in the circuit courts of appeals. In 1982, the Congress established the U.S. Court of Appeals for the Federal Circuit, which has been the Board's principal reviewing court ever since.

The Air Traffic Control Cases

Despite start-up difficulties largely engendered by inadequate funding, the Board was clearly on the right track. By the end of 1979, the backlog of CSC cases had been reduced to just over 1,100; new cases at the field office level were being processed in an average of 100 days; and the Board had in place the outlines of a body of law that set the ground-work for protecting the merit principles well into the future.

On the operational side, the Board also undertook a major initiative--its first computerized case-tracking system. With two mainframe computers, the Board was equipped to use technology to monitor its work. A research system was set up to increase access to the Board's rapidly developing case law. Also important to MSPB headquarters employees was the move to new offices at 1120 Vermont Avenue, NW, leaving behind the clearly inadequate space at its initial location.

The Board's systems and operations were now established, but the newly created appeals system was to undergo a major test in 1981. In the wake of the Federal Aviation Administration air traffic controller strike and the subsequent firing of the striking air traffic controllers (ATCs), more than 11,000 appeals from ATCs were filed with the Board. The Board, with some 300 employees, suddenly had to handle an influx of cases almost twice its prior workload. And it had to do so in the face of a reduced budget. In fiscal year 1981, there was an across-the-board cut in funding for Federal agencies, and the continuing resolution passed at the end of the year reduced MSPB's budget by 16 percent. The combined impact of the budget cuts and the ATC appeals forced the Board to implement severe cost-cutting procedures, including suspending hearings from December 1981 to February 1982. When hearings were resumed, they were held only in the regional offices, and a ban on travel continued until July 1982.

The Board was forced to take additional space on the top floor of 1120 Vermont Avenue, NW (immediately dubbed the "Control Tower," given both the elevated location and the nature of the cases), just to handle the 11,000-plus air traffic controller case records.

The ATC cases were the central fact of life at MSPB for the next three years. Throughout 1982 and 1983, the regional offices worked through the more than 11,000 ATC appeals, as well as the usual caseload of other appeals, ultimately issuing almost 19,000 initial decisions in 1983. The action on the ATC appeals then moved to the Board's headquarters level, where almost 3,900 cases were decided in 1983, and over 5,200 in 1984. Despite an increase in the combined headquarters/regional staff to 420 in 1983 (an all time high), long hours were the rule, with employees sometimes working until midnight and returning a few hours later to start another day.

The MSPB's ability to produce in such record numbers is the more remarkable given that it managed this caseload while dealing with another budget crisis. Because requested emergency supplemental appropriations were not provided by Congress until July 1982, the Board was forced to order a furlough. Almost all employees were placed on a half time schedule so that work on the monumental caseload could continue, within budgetary limitations.

First Merit Systems Studies

During this extraordinary period of litigation, the Board also shouldered its oversight responsibility. In March 1981, the MSPB issued a landmark report on sexual harassment in the Federal workforce--a study undertaken in response to a specific request from the Congress--that became a benchmark for later studies. In June 1982, the Board issued the first in its continuing series of reports on OPM significant actions. In these early years, the Board also conducted two studies of whistleblowing in the Federal Government, making an important contribution to Congress's development of the Whistleblower Protection Act.

Between 1984 and 1992, the MSPB built on its initial successes. Congress greatly expanded the Board's jurisdiction, giving employees new appeal rights and adding new employee protections. The Board continued to establish a solid body of case law while handling a high volume of cases. It also turned its attention to alternative dispute resolution (ADR), reflecting its commitment to making the appeals process work better. And it made human resources oversight and studies a greater priority.

Strengthening the Foundation to Protect the Merit Systems

MSPB, 1984-1992

Expansions of Jurisdiction and Increase in Caseload

The Congress has repeatedly demonstrated its commitment to protecting the merit systems--and the Board's role in implementing those protections--by expanding the MSPB's jurisdiction. During this period, over 300,000 Federal employees gained MSPB appeal rights and others gained new protections in a series of laws.

• The Postal Employee Appeal Rights Act of 1987 (Public Law 100-90) broadened the scope of MSPB appeal rights to allow approximately 35,000 non-preference eligible Postal Service supervisors, managers, and employees engaged in personnel work to appeal adverse actions to the Board.
  

• In 1989, Congress determined that whistleblowers needed special protections and additional remedies. The Whistleblower Protection Act (WPA) (Public Law 101-12) created a new cause of action, authorizing whistleblowers to bring their cases directly to the Board if the Office of Special Counsel (which was separated from MSPB and made an independent agency by this Act) declined to seek corrective action for them. The Act authorized whistleblowers to seek (from MSPB) stays of personnel actions, broadened the prohibited personnel practices statute to cover threatened or proposed actions in reprisal for whistleblowing or the exercise of an appeal right, gave the Board the power to issue orders to protect a party or witness from harassment, and authorized the Board to order interim relief for a prevailing appellant if the agency petitioned the Board for review of the initial decision.
  

• About 6,000 employees of abolished thrift institution regulatory agencies who had been transferred to the Treasury Department's Comptroller of the Currency and the Office of Thrift Supervision gained MSPB appeal rights under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (Public Law 101-73).
  

• Congress established a new appealable action for approximately 7,500 career members of the SES--denial of the periodic recertification required to remain in the SES--under the Ethics Reform Act of 1989 (Public Law 101-194).
  

• In 1990, enacting the Civil Service Due Process Amendments (Public Law 101-376), Congress provided approximately 100,000 non-preference-eligible excepted service employees such as attorneys and teachers the right to appeal both adverse actions and performance-based actions to MSPB.
  

• The Civil Rights Act of 1991 (Public Law 102-166) broadened the Board's remedial authority to include the power to order payment of compensatory damages to individuals who prevail on certain claims of discrimination.

Significant Decisions

In 1984, the Board issued a series of important precedential decisions interpreting the new performance appraisal system established by the CSRA. These included Griffin v. Department of the Army (requiring agency proof that the performance appraisal system relied upon in taking a personnel action had been approved by OPM); Sandland v. General Services Administration (requiring agency proof that the employee was given the opportunity to demonstrate acceptable performance); Callaway v. Department of the Army (ruling that an agency action will be overruled where the agency abuses its discretion in creating performance standards); and Shuman v. Department of the Treasury (ruling that an agency has the burden of proving that a failure to perform some, but not all, of the components of a critical element warrants an unacceptable rating on the element as a whole).

In 1985, Ignacio v. U.S. Postal Service became the first mixed case (one involving an action appealable to MSPB and an allegation of prohibited discrimination) in which the Board and the Equal Employment Opportunity Commission (EEOC) issued differing decisions, requiring certification of the case to a Special Panel for resolution. Although the CSRA set up an elaborate procedure for such cases, it has rarely been invoked. Only four cases have ever been certified to the Special Panel and none have been referred since 1987.

In 1990, the Board issued important decisions interpreting its new whistleblower jurisdiction (Lozada v. EEOC, Mulherin v. Air Force, and Godfrey v. Air Force); the WPA provisions governing stay requests (Gergick v. General Services Administration); and the WA savings clause (Marshall v. Department of Veterans Affairs and Lundberg v. Navy). Other important decisions focused on substantive issues such as discrimination (particularly discrimination based on disability); the requirements for reasonable accommodation of a disability; charges in adverse action cases; performance-based actions; back pay and compliance issues; Special Counsel complaints of prohibited personnel practices (especially reprisal for whistleblowing); Hatch Act violations; and numerous matters involving retirement claims. In addition, the Board continued to add to the body of case law interpreting its jurisdiction, timeliness requirements, and various issues relating to settled cases.

Commitment to Merit Systems Studies

In 1987, the Board made a major commitment to increased funding and staffing of its other statutory mission-merit systems studies and OPM reviews. The studies office was reconstituted as the Office of Policy and Evaluation (OPE), new staff members were brought on board, and an ambitious agenda of civil service research projects was developed. Among the significant reports issued based on this research are the following:

• In Search of Merit: Hiring Entry-Level Federal Employees (1987) evaluated how candidates for entry-level positions in the Federal Government were hired in the year following abolishment of OPM's Professional and Administrative Career Examination. The constructive criticism offered in this report contributed to OPM's revision of the procedures for entry-level hiring.

• Sexual Harassment in the Federal Government: An Update (1988) was a major followup to the Board's 1981 study of this subject and focused even greater attention on the issue of sexual harassment in the Federal workplace, leading to improved training programs and adoption of written sexual harassment policies at many agencies.

• The Tennessee Valley Authority and the Merit Principles, (1989) the Board's first study of a Federal merit system not governed by Tide 5 of the U.S. Code, recommended that OPM and Congress consider the TVA's positive experiences with its personnel system as they looked towards improving the civil service. This report was followed in 1991 by a review of another Federal merit system, The Title 38 Personnel System in the Department of Veterans Affairs: An Alternate Approach.

MSPB, 1993-Present

The Workplace Transformed

The MSPB's restructuring initiatives furthered the goals of both the Administration and the Congress on reinventing Government operations, management, and service delivery. A series of executive orders and memoranda mandated an across-the-board reduction in Federal employment, specific reductions in middle management ranks, issuance of agency customer service standards, and elimination of unnecessary internal regulations.

Further impetus towards reinventing Government came with the September 1993 release of the report of the National Performance Review (NPR), a report that referred to findings and recommendations from MSPB studies to support its conclusions about the way the Federal Government ought to work. Congress weighed in with enactment of the Federal Workforce Restructuring Act of 1994, which mandated even larger staff cuts than the President had called for. Later, Congress enacted the Government Performance and Results Act, which requires agencies to measure and report the results achieved by their programs.

The MSPB of today has fewer offices, fewer employees, and fewer internal procedures and regulations than the agency of 1993. Family-friendly flexible schedules are available in all MSPB offices and are used extensively. A number of employees have flexiplace arrangements, working from their homes through connections to the office computer network. Transit subsidies are available for employees who commute by public transit systems.

Most visible of the changes at the MSPB is the new technology. All headquarters offices and regional offices are connected electronically. In addition to communicating and sending documents via email, employees can share files and work collaboratively using local and wide-area networks. Direct internet access from desktop computers allows easy access to legal as well as other research tools.

The Board has used video conferencing equipment to revolutionize the hearing process--and to reduce cost and time requirements for everyone involved. With enthusiastic support from the parties involved, the video conference serves as an alternative to the traditional in-person, courtroom style hearing, and saves transportation, per diem, and other expenses. Because this equipment can result in a $2,500 savings on a single hearing, it has great potential for significant long-term savings in the 1,300 hearings the Board holds each year. Perhaps more important are the time savings and increased productivity that are possible when employees of the agencies involved are able to return to work immediately after testifying.

In September 1998, the MSPB Video Conferencing Implementation Team was honored with the Vice President's prestigious Hammer Award for its contribution to reinventing Government.

The MSPB relies on electronic information services to make information easily accessible to agencies, employees, and other customers--and reduce costs for the Board. The agency first set up an MSPB library on the Federal Bulletin Board.

Then, with the launch of its website in 1996, the Board made a giant leap into cyberspace. Customers now have 24-hour access via the website to Board decisions, study reports, press releases, regulatory changes, forms, publications, Board member biographies, and other information, along with links to related websites. In addition to launching the website, in 1996 the Board also implemented a 24-hour toll-free telephone number, which allows customers to leave messages to check on the status of appeals, request publications, or ask questions. Reports of merit systems studies and oversight reviews of OPM have become the most frequently down-loaded items from the website (along with Issues of Merit, the Board's periodic newsletter featuring information drawn from MSPB research and studies).

The MSPB website is recording about 20,000 hits per month. You are invited to visit the site at www.mspb.gov.

Looking towards the future, MSPB has undertaken a major initiative to design and develop an integrated document management and workflow system that will include support and maintenance of imaged and electronic case records. By the year 2000, MSPB envisions offering the advantages of on-line submission and acceptance of appeals, briefs, and other case-related materials. The Board currently has underway a pilot electronic filing project with the Federal Circuit. Lachance v. White and MSPB, Federal Circuit Docket No. 98-3249 (involving the question of whether the Board should use an objective or subjective test when judging the reasonableness of a whisdeblower's allegations) is the first case selected for this test.

In addition to the new technologies, changes in structure and reductions in staff mark today's MSPB. The restructured Board of 1998 has directed its assets toward its adjudicative function. Several headquarters offices with primarily management or review functions have been eliminated, reducing headquarters offices and administrative divisions from 14 to 10. Today, there are only five regional offices (reduced from 11) and five field offices. As part of this realignment, former regional directors became chief administrative judges with direct case processing duties and fewer management responsibilities, while former administrative officers were retrained as paralegals.

Retirements, outplacement assistance, and judicious use of voluntary separation incentives provided by Congress all helped the Board streamline its staff with a minimum of disruption. In October 1997, a reduction in force was implemented affecting support staff positions at headquarters. With funds saved as a result of the RIF, the Board was able to hire a number of temporary administrative judges and attorneys, staff directly involved in case-processing.

The Board also has eliminated staff whose functions can be better performed outside the agency. For example, the Board uses the Department of Agriculture's National Finance Center for payroll and accounting, and its Animal and Plant Health Inspection Service for personnel services, giving MSPB access to a large, expert human resources staff at a significant cost savings.

The days of submitting purchase orders to the finance office and cutting checks to vendors are over. Most purchasing is done with Government purchasing credit cards. In 1998, MSPB became the first agency serviced by the National Finance Center to implement their new Purchase Card Management System (PCMS). This system cuts the time spent on processing credit card transactions. Almost all payments are made by electronic funds transfer.

What makes all of these changes particularly noteworthy is that during this restructuring process, the Board had to contend not only with the largest caseload since the days of the air traffic controller cases, but also with expanded jurisdiction and new issues, as well as a more urgent need to provide oversight, as personnel functions were delegated more extensively throughout the Government.

A Spike in Cases--the Postal Service Restructuring

In a major restructuring of the U.S. Postal Service in late 1992, thousands of positions were abolished and several thousand employees were separated or moved to lower-graded positions. In July 1993, the Board ruled that the USPS restructuring as it affected preference-eligible employees was an appealable RIF action (Brown v. USPS and DiPietro v. USPS). Based on the rulings in these cases, administrative judges began reversing the USPS action in many of the RIF appeals, and more appeals followed.

In November 1993, the Director of OPM sought review of the Board's ruling on the Postal Service restructuring by intervening in two pending cases. Consequently, the Board stayed the processing of all the pending USPS restructuring cases until these lead cases were decided. June 1994, the Board issued its final decisions in White v. USPS and OPM, and Robinson, Diaz, and Yruegas v. USPS and OPM, affirming its ruling in Brown and DiPietro. Soon afterwards, the Board issued its decision in Marcoux v. USPS, dismissing the appeal for lack of jurisdiction. (The case involved an appeal--by a Postal Service employee without veterans' preference--of an adverse action, rather than a RIF.) Within a couple of months, the Board had decided more than 100 petitions for review arising from the USPS restructuring, in most cases reversing the agency's action based on White and Robinson, and in the rest, affirming the agency action based on Marcoux.

Although the U.S. Postal Service cases did not have as severe an impact on the Board as the air traffic controller cases of the early 1980s, they did lead to the issuance in 1995 of more decisions than in any year since 1983. Largely as a result of these additional cases, the regional and field offices issued almost 11,000 decisions, and the Board, almost 2,300.

In the latter half of 1994, as word of these decisions spread, the Board received a large influx of new appeals of the USPS restructuring. In addition, the question of whether USPS had complied with the Board's earlier decisions became a major issue, resulting in the issuance of two decisions--Sink v. USPS and Unhoch v. USPS--that led to the Postal Service running a compliance RIF in mid-1995. The compliance RIF, in turn, led to a second wave of appeals to MSPB. In addition to the appeals of the merits of the USPS actions, there were numerous related cases, such as requests for attorney's fees, petitions for enforcement, remands, and reopenings by the Board.

Altogether, the USPS restructuring cases accounted for almost 4,000 MSPB decisions during the 1993-1995 period--over 3,200 in the regional and field offices and almost 800 by the Board. 

Continued Expansion of Merit Protections

Congress's continued commitment to a merit-based civil service is reflected in its recent expansions of appeal rights--again increasing the number of Federal employees protected and the scope of the protections provided.

• The Foreign Relations Authorization Act, FY 1994-1995 (Public Law 103-236) extended MSPB jurisdiction to include certain RIF appeals filed by career members of the Foreign Service.

• In 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) (Public Law 103-353) gave the Board statutory jurisdiction over the reemployment rights claims of Federal employees called away to military service. In addition, USERRA extended MSPB jurisdiction to include claims of discrimination based on military service or status as a veteran in employment, reemployment, or other rights and benefits of employment.

• The 1994 reauthorization of MSPB and the Office of Special Counsel (Public Law 103-424) extended whistleblower protections to about 73,000 employees of Government corporations and extended coverage for all prohibited personnel practices to approximately 55,000 health care professionals in the Department of Veterans Affairs. This law also extended the coverage of the prohibited personnel practices statute to new personnel actions. Finally, the law provided the Board with new authorities to order payment of attorney's fees in Special Counsel corrective cases and disciplinary action cases, and to order payment of consequential damages (travel costs, medical expenses, and other consequential damages) in both whistleblower cases and Special Counsel corrective action cases.

• With the enactment of the Presidential and Executive Office Accountability Act in 1996 (Public Law 104-331), the Congress extended the Board's jurisdiction into completely new areas. This law authorizes appeals to the MSPB by approximately 1,700 employees in the Executive Office of the President based on violations of a number of workplace laws, including the Family and Medical Leave Act (FMLA), Fair Labor Standards Act, Employee Polygraph Protection Act, and Worker Adjustment and Retraining Notification Act, as well as USERRA.

• The last days of the 105th Congress saw the enactment of two new laws with the potential for greatly increasing the Board's caseload. Under the Veterans Employment Opportunities Act of 1998 (Public Law 105-339), a preference eligible may file an appeal with MSPB based on a violation of any law or regulation relating to veterans' preference, after first filing a complaint with the Department of Labor and allowing DOL 60 days to try to resolve the matter. In addition, a violation of veterans' preference is now specifically articulated as a prohibited personnel practice, allowing the Special Counsel to petition the Board to order disciplinary action against an employee who commits such a violation. The Veterans Programs Enhancement Act of 1998 (Public Law 105-368) included a number of amendments to USERRA, including one extending the Board's jurisdiction to cover claims of violations that occurred before the October 13, 1994, enactment date of USERRA.

In Moscato v. Department of Education, the Board suspended application of one of its regulations, saying that it would no longer dismiss an agency's petition for review as moot when the agency inadvertently cancels the action under appeal in order to comply with an interim relief order. White v. USPS (1996) set forth a new rule concerning the scope of the Board's review of agency penalty determinations--where only some of an agency's charges are sustained, the Board will independently select what it considers to be "a reasonable penalty." And in Hasler v. Air Force (1998)(an interlocutory appeal), the Board ruled that it may authorize as a method of discovery the use of a physical or mental examination under Rule 35 of the Federal Rules of Civil Procedure.

The Board has changed the focus of review of its judges' initial decisions from technical and procedural matters to merits issues. For example, fewer cases are being dismissed on timeliness grounds, thus allowing the Board to reach the merits issues in these cases. At the same time, cases are becoming more complicated. For example, appellants are not only alleging a wrongful removal or suspension but also adding claims of disability, race, sex and/or age discrimination, FMLA issues, claims of reprisal for whistleblowing, USERRA rights, etc. All of these issues must be addressed, lengthening hearings and making decisions harder, longer, and more complex. The Board also continues to refine its adjudicatory process. The time limit for filing an appeal, previously 20 days after the effective date of an agency action, was extended to 30 days. The time limit for filing a request for attorney's fees was extended from 30 days to 60 days after the date of a final Board decision.

Oversight in the Restructured Government

In light of the increasing decentralization of personnel authorities, recent Board studies are deliberately focusing on issues that are particularly relevant to Federal employees and managers and on providing practical recommendations. This back to basics approach is intended to enhance the ability of the executive branch to recruit, select, motivate, and manage a highly qualified workforce.

• Federal Supervisors and Strategic Human Resources Management (1998) pointed out the problem that, although most Federal supervisors do a commendable job of performing their technical duties, they have difficulty with human resources management tasks, tending to respond to immediate needs rather than making long-range strategic decisions.
  

• Civil Service Evaluation: The Evolving Role of the U.S. Office of Personnel Management (1998) reviewed OPM's program for oversight of the merit-based civil service system, raising questions about how well OPM is helping agencies shift the focus of personnel management accountability from human resources offices to line managers.
  

• The Changing Federal Workplace: Employee Perspectives (1998) provided policymakers with a glimpse of how Federal workers viewed efforts to reinvent the way the Government conducts business. The report highlighted the successes and failures of these efforts as seen from the front line.
  

• Adherence to the Merit Principles in the Workplace: Federal Employees' Views (1997) examined the degree to which executive branch organizations are adhering to the requirements of the statutory merit principles. The study found that while most employees believe their agencies are upholding the merit principles, substantial numbers see their agencies as failing in this responsibility.
  

• Removing Poor Performers in the Federal Service (1995) concluded that few managers use the performance-based removal procedures established by the CSRA. It further found that many supervisors do not understand either of the two major processes established for removing poor performers--Chapter 43 and Chapter 75 of Title 5.
  

• The Rule of Three in Federal Hiring: Boon or Bane (1995) created some controversy with its finding that the longstanding "rule of three" (which requires a manager to hire from among the top three candidates referred for a position) was not advancing the principle of merit-based hiring it was intended to protect.
  

• Leadership for Change: Human Resource Development in the Federal Government (1995) discussed the fact that training in the Government is seldom linked to strategic planning. The report suggested ways to restructure the training function so that agencies are better prepared to meet their mission objectives.
  

• Temporary Federal Employment: In Search of Flexibility and Fairness (1994) led to changes in OPM policy on the hiring of temporary Federal employees.
  

• Whistleblowing in the Federal Government: An Update (1993) and Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges (1995) took a new look at these perennially important issues.
  

• Entering Professional Positions in the Federal Government (1994) discussed how the various methods of entering Government service contribute to the quality and representativeness of the workforce.

The Federal workplace today is a different world from what it was when the CSRA was enacted. It is smaller--the workforce has been cut by some 300,000 jobs. It is more customer oriented--serving and communicating clearly with the people we serve are priorities. Regulations have been eliminated or streamlined. Organizations, too, are more streamlined and more focused on basic missions. Accountability and performance are the watchwords. All of this certainly holds true for the Board.

Despite these changes, however, the principles underlying the CSRA remain sound, viable, and unchanged. And there is no change in the determination of the Board--and its sister agencies, the Office of Personnel Management, the Office of the Special Counsel, the Federal Labor Relations Authority, and the Equal Employment Opportunity Commission--to promote these values.

The last 20 years are a relatively small part of the 116-year history of the merit-based civil service that has served this country so well. It was during these last two decades, however, that the blueprint of the Civil Service Reform Act guided the Government and its employees and institutions in the crucial task of building a foundation for merit suited to the 21st century. The Board now rededicates itself to the goal of working with the rest of the Federal community to construct upon that foundation a Federal workplace that is an exemplar of fairness, integrity, efficiency, and effectiveness.

Clearly, a standard by which to gauge how well the Government does in this regard over the next 20 years will be the degree to which it is able to recruit, select, develop, and effectively manage a highly qualified, motivated, and productive workforce. MSPB will continue to do its part to ensure that the Federal merit systems assist Government agencies in fulfilling their many missions on behalf of the nation and that Federal employees are held accountable for achieving results. The challenges of the next century are sure to be formidable, but a Federal workforce operating upon a foundation of merit will meet those challenges.

Members of the U.S. Merit Systems Protection Board 1979-1999
 

Ruth T. Prokop	Chairman	1979-1981
Herbert E. Ellingwood	Chairman	1981-1986
Daniel R. Levinson	Chairman	1986-1993
Ben L. Erdreich	Chairman	1993-Present

 

Ersa H. Poston (Acting Chairman, 1981)	Vice Chairman	1979-1983
Maria L. Johnson (Acting Chairman, 1986)	Vice Chairman	1983-1986
Antonio C. Amador	Vice Chairman	1990-1993
Jessica L. Parks	Vice Chairman	1993-1995
Beth S. Slavet	Vice Chairman	1995-Present

 

Ronald P. Wertheim	Member	1979-1981
Dennis M. Devaney	Member	1982-1988
Samuel W. Bogley	Member	1988-1989
Jessica L. Parks	Member	1990-1993
Antonio C. Amador	Member	1993-1997
Susanne T. Marshall	Member	1997-Present