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Prohibited Personnel Practices (5 USC § 2302(b))


Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
  1. discriminate for or against any employee or applicant for employment—

    1. on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

    2. on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

    3. on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d));

    4. on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

    5. on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

  2. solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

    1. an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

    2. an evaluation of the character, loyalty, or suitability of such individual;
  3. coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

  4. deceive or willfully obstruct any person with respect to such person's right to compete for employment;

  5. influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

  6. grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

  7. appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110 (a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110 (a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

  8. take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—

    1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

      1. a violation of any law, rule, or regulation, or

      2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
    2. any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

      1. a violation of any law, rule, or regulation, or

      2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
  9. take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—

    1. the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

    2. testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);

    3. cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

    4. for refusing to obey an order that would require the individual to violate a law;
  10. discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;
  11.  
    1. knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or
    2. knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement; or
  12. take or fail 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 contained in section 2301 of this title; or
  13. implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: "These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."
This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.


During the first nine months of 2011, the Merit Systems Protection Board (MSPB) presented a series entitled the "Merit System Principle of the Month," discussing in turn each of the nine merit system principles, what they mean, and such issues as what role MSPB and other agencies play in their enforcement, and what our case law and studies have said about them. All nine merit system principles can now be read on MSPB's website. Before turning to a similar monthly discussion of each individual prohibited personnel practice (PPP), we provide an introduction that we hope puts them in a context that makes them more understandable and relevant.

What is the significance of the PPPs and where do they come from?
Since the 1883 Pendleton Act, Congress has attempted to assure good government by enacting laws that require or prohibit certain actions by Government agencies and employees. These reforms began with laws that limited political influence in employment and grew over the years to establish rules for what must or must not be done in many areas of Government employment. It was not until the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95 454, 92 Stat. 1111, however, that a comprehensive list of 11 PPPs, now expanded to 12, was enacted into law. 5 U.S.C. § 2302(b)(1)-(12). Unlike the merit system principles, Congress made the prohibition of these personnel practices enforceable, so that employees would know of them and could be disciplined for committing a PPP. H. Rep. No. 95-1403, 95th Cong, 2d Sess. at 4 (1978). When President Carter transmitted to Congress his recommendations for civil service reform, he spoke of the problems he wanted to remedy in doing so and what he hoped to achieve as a result, including the desire "[t]o strengthen the protection of legitimate employee rights;" to "guarantee independent and impartial protection to employees" by establishing the MSPB; and to "help safeguard the rights of Federal employees who 'blow the whistle' on violations of laws or regulations by other employees, including their supervisors." President's Message of March 2, 1978, reprinted in H. Rep. No. 95-1403 at 98-100. The PPPs and the mechanisms established to enforce them are intended to achieve those ends.

How does MSPB enforce the prohibition against these personnel practices?
There are several ways that PPPs may be vindicated. The Office of Special Counsel (OSC) has authority to investigate allegations of PPPs brought by an individual and may even conduct an investigation in the absence of such an allegation in order to determine if corrective action is warranted. 5 U.S.C. §§ 1214(a)(1)(A), (a)(5). If OSC is unable to obtain a satisfactory correction of the practice from the agency at which it occurred, it may ask MSPB to grant corrective action, and if OSC proves its claim, the Board may order the corrective action it deems appropriate. 5 U.S.C. §§ 1214(b)(2)(B), (C), (b)(4)(A). During its investigation, as well as during the period a petition for corrective action is pending before MSPB, OSC may ask MSPB to stay any personnel action to which an affected employee was subject. 5 U.S.C. § 1214(b)(1)(A)(i), (B). The OSC may also petition MSPB to discipline an employee for having committed a PPP. 5 U.S.C. § 1215(a)(1)(A). After a hearing, MSPB may impose disciplinary action ranging from reprimand to removal, debarment from Federal employment for up to five years, or an assessment of a civil penalty up to $1,000.

If I believe that I have been the victim of a PPP, may I bring an appeal to the MSPB myself?
Under some circumstances, yes. The MSPB hears and decides appeals from many kinds of actions agencies may take against the employees who work for them. Among them are adverse actions (removal, demotion, suspension for more than 14 days, reductions in grade and pay, and furloughs for 30 days or less), reductions in force, certain performance-based actions, and a substantial number of others. You will find a complete list of those actions at 5 C.F.R. § 1201.3. With limited exceptions, if the agency takes any of these actions against you, known in this context as an "otherwise appealable action" (OAA), and if MSPB has jurisdiction to hear an appeal from a person with your tenure, preference eligible status, etc., it may also consider a claim that the action was taken for one of the reasons prohibited by 5 U.S.C. § 2302(b). Such a claim is called an "affirmative defense" to the agency's action, and MSPB will consider it because Congress specified in 5 U.S.C. § 7701(c)(2)(B) that even if the agency proves its action by the required standard of proof, its decision may not be sustained if you show "that the decision was based on any prohibited personnel practice described in section 2302(b) of" Title 5 of the U.S. Code. Thus, in such cases, the agency has the burden of proving the action that it took and you have the burden of proving by a preponderance of the evidence your claim of a PPP. A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the entire record, would accept as sufficient to find that your claim is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).

If my agency has not taken an appealable action against me, may I still bring an appeal to MSPB?
Generally, if you have not been subject to an OAA, you must rely on OSC to request corrective action on your behalf, but under limited circumstances, you may be able to seek relief from MSPB on your own. Specifically, you may file what is known as an individual right of action (IRA) appeal if you believe that an agency has taken, threatened to take, or failed to take a personnel action against you because you "blew the whistle," i.e., disclosed information that you reasonably believed evidences a violation of law, rule, or regulation, gross mismanagement or a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. 5 U.S.C. §§ 1221(a), 2302(b)(8). Before bringing an IRA appeal, however, you must ask OSC to investigate the matter. In addition, if you believe that an agency violated a veterans preference requirement you may also ask MSPB to correct the violation. That is because such a violation is prohibited not just by 5 U.S.C. § 2302(b)(11), but also by the Veterans Employment Opportunities Act of 1998 (VEOA) (codified in various sections of 5 U.S.C. chapter 33). Under VEOA, there is no requirement that you first seek corrective action from OSC, but you must first raise your claim with the Secretary of Labor. Finally, both on its own motion and based on a petition filed by an organization or an individual, MSPB has the authority to review any rule or regulation issued by the Office of Personnel Management and to declare it either invalid on its face if its implementation would cause an employee to commit any PPP, or invalidly implemented if an agency's implementation of the rule or regulation has caused an employee to violate 5 U.S.C. § 2302 by committing a PPP. 5 U.S.C. § 1204(f).

What requirements apply to proving a PPP?
In addition to the specific kinds of evidence that must be presented to prove individual PPPs, which will be discussed in subsequent months, only agency actions that meet the tests set out in 5 U.S.C. § 2302 are prohibited by this law. First, not every employee may commit a PPP as that term is defined by the statute. Only "[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action" is subject to being sanctioned for committing a PPP. 5 U.S.C. § 2302(b). Thus, managers and supervisors are likely to be subject to the prohibition, as are employees in jobs in fields such as human resources, who make recommendations on many personnel actions. Moreover, it was not the innocent mistake that Congress sought to remedy, but those practices that are done intentionally. As the CSRA's legislative history stated, "[a] prohibited personnel practice is a personnel action which is taken for a prohibited purpose." S. Rep. No. 95-969, 95th Cong., 2d Sess., 20 (1978). Additionally, as the quoted language from section 2302(b) states, in order to be actionable, a PPP must have led to a "personnel action," as enumerated in the eleven subsections of section 2302(a). While not every action an agency takes can constitute a PPP, even if done for a prohibited purpose, the list is quite comprehensive and covers a very broad range of agency actions that occur every day, from appointment, promotion, and decisions concerning pay, benefits, and awards to discipline and significant changes in duties, responsibilities, and working conditions. Finally, a PPP applies only to an employee in or applicant for a "covered position" in an "agency." 5 U.S.C. § 2302(a)(2)(A). The first of those terms is defined for purposes of PPP law at 5 U.S.C. § 2302(a)(2)(B), the second at section 2302(a)(2)(C).

How can I find out more about PPPs?
In addition to following our monthly explanations of the individual PPPs, you may wish to read MSPB's August 2011 report entitled "Prohibited Personnel Practices: Employee Perceptions." This report examines the frequency with which employees experience or witness what they perceive to be PPPs, but among its purposes is "to better educate the Federal workforce, and supervisors in particular, about the existence of the PPPs, how they can be avoided, and why avoiding the PPPs is not simply the law, but also a good management practice that can help create a more engaged workforce." Report at 4. The MSPB also published a June 2010 report on PPPs, as well as several reports dealing with specific PPPs, all of which are available on our website at www.mspb.gov/studies/index.htm. Similarly, Board decisions on appeals arising in each of the ways discussed above are also available on our website.

The first prohibited personnel practice seems to repeat what merit system principle 2 says.  Is there a difference?
The first prohibited personnel practice (PPP), 5 U.S.C. § 2302(b)(1), is very similar to the second merit system principle, but the biggest difference between the two is that all of the merit system principles represent ideals for the way the Federal government should be run but they are not enforceable, standing alone.  Thus, many of the principles have a similar PPP that serves to enforce the ideals represented by the principle.  There are also some additional differences that are significant, most notably that with the exception of subsection (E), the PPP names the specific law that prohibits the conduct and therefore gives it context and meaning because those laws have been subject to much administrative and judicial litigation over their lifetimes.  Finally, the principle concerning “privacy and constitutional rights” is not repeated in this PPP.

If I file an appeal with the Merit Systems Protection Board (MSPB) and claim that I was discriminated against, will MSPB hear my claim?
If your claim is filed in connection with a matter that is appealable to MSPB, we will hear your discrimination defense in addition to your claims about the underlying action itself.  This kind of appeal is known as a “mixed case.”  Although MSPB cannot hear claims of discrimination when appeals are filed under three specific statutes (the Veterans Employment Opportunities Act of 1998, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the individual right of action provisions of the Whistleblower Protection Act), MSPB will consider an allegation of discrimination as a defense to an appealable agency action in most instances.  However, in the absence of an otherwise appealable action, a PPP claim may not be considered.

I know what it means when I say that I was discriminated against, but I don’t know much about PPPs.  What’s the difference?
There is no difference.  A claim of discrimination is just one type of PPP established by the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111 (CSRA). Whether you tell MSPB you are raising a PPP claim under 5 U.S.C. § 2302(b)(1) or just say you believe you were discriminated against on one of the bases listed in that section, the burdens and standards of proof remain the same and MSPB will hear your claim if it has jurisdiction over your appeal.

If I want to raise a claim of sex discrimination, what’s the difference between raising it under subsection A and subsection C?
The Fair Labor Standards Act (FLSA) section cited in the law, with limited exceptions, prohibits paying lower wages on the basis of sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”  The Civil Rights Act of 1964 is not limited to wage disparities, but covers “[a]ll personnel actions affecting employees or applicants for employment.”  Thus, if you believe that you are being paid less than a co-worker because of your gender, your claim will fall under (C).  All other gender-based claims will come under (A).  While most claims, therefore, come under (A), during the processing of your appeal the administrative judge will provide enough information to enable you to know what your burden of proof is depending on the type of claim you raise.

Most of the other kinds of discrimination are familiar, but what are marital status and political affiliation discrimination?
To prove the former, an employee must demonstrate that unmarried employees were treated differently from married employees.  Stokes v. Federal Aviation Administration, 761 F.2d 682, 685 (Fed. Cir. 1985).  Thus, such a claim does not include circumstances that may result from your marital status, e.g., child care responsibilities.  Political affiliation discrimination does not cover “office politics” or political correctness.  Rather, it means discrimination based on a person’s affiliation with any partisan political party or candidate.  Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir. 1983).  As such, it harkens back to the roots of MSPB, the Pendleton Act of 1883, which replaced the patronage system with a merit system.

What about sexual orientation discrimination?  Is that the same as sex discrimination?
The two concepts are different, and the MSPB lacks jurisdiction under this PPP over a claim of sexual orientation discrimination, although such a claim may be raised under a different PPP.  The Equal Employment Opportunity Commission (EEOC) also lacks authority to hear allegations of sexual orientation discrimination, but it has recently held that where a male employee alleged that he was harassed because he was going to marry another man and that the harassment would not have happened if he were a woman marrying a man, EEOC found that the complainant had alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail.  Veretto v. Donahoe, Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011).  Veretto was not a mixed case, and the Board has not yet had an opportunity to rule on this type of issue.  Finally, the position of the Office of Special Counsel (OSC) is that allegations of discrimination based on sexual orientation (as well as marital status and political affiliation discrimination) may be prohibited personnel practices or other violations of law subject to its investigation.  See www.osc.gov/pppPolicies1.htm.

I thought that if I believe that I was discriminated against, I had to bring my claim to the agency and the EEOC.  Doesn’t the EEOC decide such claims?  Plus, I know that OSC can investigate PPPs, so does it also have authority?
The EEOC does have authority to decide claims of discrimination under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Rehabilitation Act, and to award appropriate remedies, but it lacks authority with respect to claims of discrimination based on marital status or political affiliation.  See www.EEOC.gov/federal/otherprotections.cfm.  The MSPB has authority to hear all of those claims when they are raised in connection with a matter that we have jurisdiction over.  As to OSC, because discrimination is a PPP, it does have the authority to investigate and seek corrective and disciplinary action concerning such claims.  However, OSC states that because procedures for investigating those complaints have already been established in Federal agencies and the EEOC, it “follows a general policy of deferring complaints involving discrimination to those agencies' procedures.”  See www.osc.gov/pppPolicies1.htm.  In fact, there is yet an additional option for employees covered by a collective bargaining agreement, filing a grievance.  See 5 C.F.R. § 1201.3(c)(1)(i), which provides for an election between filing a grievance and appealing to MSPB.

With all of those options available, how do I know where to file?
When Congress listed the PPPs in the CSRA, it struggled with the same issue.  It decided that, because EEOC’s expertise lies in issues of discrimination law and MSPB’s is in civil service law, when the two come together in one case, deference should be given to each agency based on that expertise.  See Conference Report on S.2640, H.R. Rep. 95-1717, at 139 (1978), as reprinted in Committee on Post Office and Civil Service House of Representatives, 96th Cong., Legislative History of the Civil Service Reform Act of 1978, at 1981 (1978).  As a result, 5 U.S.C. § 7702(a) provides that when an employee or applicant is affected by an action that is appealable to MSPB and wishes to raise a claim of discrimination on one of the bases set out in section 2302(b)(1), that is, a “mixed case,” MSPB may hear and decide both the appealable matter and the issue of discrimination, whether the discrimination issue was first raised to the agency (if the agency has decided it or 120 days have passed since a formal complaint was filed) or brought directly to MSPB.  Also, MSPB’s own regulations, at 5 C.F.R. § 1201.21, provide that when an agency takes an appealable action, it must notify the employee of the right of appeal to MSPB.

In addition, both MSPB and EEOC have regulations setting out the rules specifically applicable to mixed cases.  They provide that if the employee files an EEO complaint first, the employee can appeal to MSPB after receiving a Final Agency Decision on the EEO complaint from the agency, or 180 days after filing the EEO complaint if no final decision has been received.  If the employee files an MSPB appeal first, the employee may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.  For the applicable rules, see 29 C.F.R. Part 1614 and 5 C.F.R. Part 1201, subpart E.

As to grievances, an employee who elects to file a grievance and raises an allegation of discrimination may appeal to the Board for review of a final arbitration decision.  In such cases, though, the employee must file his appeal directly with the Clerk of the Board and will not be entitled to the procedures granted by an appeal at the regional and field offices. See 5 C.F.R. § 1201.3(c)(3).

Last, since OSC defers to the discrimination complaint process, filing there is not a good choice for gaining review.  Whether you file initially with MSPB or go through your agency’s EEO or grievance process, however, 5 U.S.C. § 2302(b)(1) makes discrimination under the laws it names a PPP, so the same law will apply to proving your claim.  And, don’t worry about possibly filing at the wrong agency.  Congress recognized there might well be confusion and also provided in the CSRA that:

In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.5 U.S.C. § 7702(f).

It seems like MSPB would receive a lot of cases alleging this prohibited practice.  Has it?
Yes, in fact MSPB statistics for the last five fiscal years for which statistics were available (prior to November 2011) show that more than 9,000 allegations of discrimination were made, including those cases in which more than one type of discrimination was asserted.  However, MSPB administrative judges decided on their merits only about 1,500 of them because many cases were settled or dismissed for untimeliness or lack of jurisdiction, or the allegation was withdrawn.  These same statistics show that the claim raised most frequently is disability discrimination, followed by race, then sex.

Has the Board recently issued any significant decisions addressing issues of discrimination?
Yes.  For example, in Southerland v. Department of Defense, 2011  MSPB 92 (October 5, 2011), it interpreted the Americans With Disabilities Act Amendments Act (ADAAA) and held that if an employee is not challenging the agency's failure to make reasonable accommodation and does not require a reasonable accommodation, the analysis should proceed under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.  It also held that a “but for” test applies under the ADAAA, i.e., that the employee must show that but for the disability, the agency would not have taken the appealed action, and the burden of persuasion does not shift to the agency to show that it would have taken the action regardless of disability, even if the appellant produces some evidence that disability was one motivating factor in the adverse employment action.  In Bowman v. Department of Agriculture, 113 M.S.P.R. 214 (2010), the Board also adopted the “but for” test for claims of age discrimination made under the Age Discrimination in Employment Act.  In Davis v. Department of the Interior, 114 M.S.P.R. 527 (2010), addressing generally the requirements of Title VII of the Civil Rights Act but specifically race and sex discrimination, it clarified that to meet the burden of proof that the agency’s action was discriminatory, the appellant need not introduce evidence of a similarly situated employee not in his or her protected group who was treated more favorably, but may rely on anyevidence giving rise to an inference that the unfavorable treatment at issue was due to illegal discrimination.

Has the Board studied discrimination in the Federal government?
It has.  As we noted in connection with merit system principle 2, it recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining.  This is just the most recent study relative to issues of discrimination and fair treatment.  You may find all of the others, dating back to the first, a 1981 report on sexual harassment, on MSPB’s website at www.mspb.gov/studies/viewallstudies.htm.

PROHIBITED PERSONNEL PRACTICE NUMBER 2: Proper considerations in making personnel decisions - what does this provision address?
This provision is found at 5 U.S.C. § 2302(b).  Along with all of the other prohibited personnel practices, except number 11, this provision came from the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111.  The legislative history concerning section 2302(b)(2) indicates that the section was intended to prevent the use of political influence to obtain a position or promotion in the federal government.  The pertinent Senate Report explains that this provision: “restates and expands 5 U.S.C. § 3303, which currently prohibits consideration of recommendations submitted by senators and representatives, except as to character or residence.  The paragraph adds a prohibition against soliciting any such recommendation.  An exception is made for recommendations based on personal knowledge or personal records, where it consists of an evaluation of work performance, ability, aptitude, character, loyalty, or suitability.”  S. Rep. No. 969, 95th Cong.; 2d Sess. 20 (1978), U.S.Code Cong. & Admin.News 1978, 2723, 2743. 

Will the Merit Systems Protection Board (MSPB or the Board) hear a claim that the agency violated this provision?
Under 5 U.S.C. § 7701(c)(2)(B), MSPB may not sustain a personnel action “based on” a prohibited personnel practice.  Generally, a prohibited personnel practice may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which means that MSPB has jurisdiction in the case.

As with the other prohibited personnel practices, if you file a claim with MSPB in connection with an otherwise appealable action, we will hear your claim that you believe this provision was violated, but only if it is related to your claims about the underlying personnel action being appealed.  Such claims will not be heard if your appeal is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities. 

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, it is raised as an affirmative defense.  Under MSPB’s regulations, the appellant bears the burden of proving all affirmative defenses.  That burden is by preponderant evidence which means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be found in section 1201 of title 5 of the Code of Federal Regulations, which can be accessed through our website under “Rules and Regulations.”

Does this provision mean that an agency cannot interview employees who witness or are involved in an incident leading to discipline?
The MSPB and the U.S. Court of Appeals for the Federal Circuit, which is authorized to review all Board decisions not involving issues of discrimination, have held that this provision does not apply to situations where an agency takes statements from persons who are somehow involved in the incident giving rise to the disciplinary proceeding, but rather relates to statements or recommendations by outsiders, such as senators or congressmen.  The court noted that the legislative objective was to forestall political or partisan interference in personnel actions.  Depte v. United States, 715 F.2d 1481 (Fed.Cir.1983), overruled on other grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, n.4 (Fed. Cir. 1999).  The Board has also held that a deciding official did not violate section 2302(b)(2) where he was not an eyewitness to the charged events and relied upon the statements of others in making the decision to remove an employee.  Giltner v. Department of Air Force, 50 M.S.P.R. 209, n.1 (1986).

Does this mean that a management official cannot ask a labor relations specialist for advice in taking a disciplinary action against an employee?

In Gonzales v. Defense Logistics Agency, 772 F.2d 887, 892 (Fed. Cir. 1985), the court stated that “[t]here is no prohibition against a decision-maker calling for advice from those who are not in an adversarial position with the offending employee.”  See also Boudreau v. Department of Agriculture, 883 F.2d 1023 (Fed. Cir. 1987)(Table)(non-precedential).  In Boudreau, the court held the agency did not violate 5 U.S.C. § 2302(b)(2) by seeking advice from an employee relations specialist in the taking of a personnel action, where that individual was not in an adversarial position with the employee being disciplined.  These cases were issued prior to the court’s decision in Stone, cited above, dealing with the issue of ex parte communications by a deciding official.  Any such discussions would have to comply with the dictates of due process, as required by Stone, that no disciplinary action be taken based on new and material evidence that is not provided to the employee so that the employee has an opportunity to respond.

Can an agency ask for recommendations from a prior supervisor when an applicant applies for a position or a promotion?
Yes.  Section 2302(b)(2) prohibits solicitation or consideration of recommendations based on political considerations, and was intended to prevent the use of improper influence to obtain a position or promotion; recommendations for competitive positions must be based upon personal knowledge and an evaluation of the performance, ability, character and suitability of the individual involved.  Acting Special Counsel v. Sullivan, 6 M.S.P.R. 526 (1981). 

How does this provision relate to the prohibition against ex parte communications?
Section 2302(b)(2) should not be confused with the prohibition against ex parte communications in disciplinary personnel actions; they are distinctly different.  An ex parte communication to a deciding official is a communication, without the knowledge of, and opportunity to respond by, the employee being disciplined and it has the effect of denying him the due process to which he is entitled under the Constitution. Sullivan v. Department of the Navy, 720 F.2d 1266, 107-74 (Fed. Cir. 1983).

In contrast, Section 2302(b)(2) allows for certain communications that relate to an evaluation of  work performance, ability, aptitude, or general qualifications of an individual or an evaluation of the character, loyalty, or suitability of an individual when the employee is under consideration for a personnel action.  In disciplinary action cases, the prohibition against ex parte communications would prevent these communications in most instances, where the information is not otherwise known, or made known, to the employee prior to making a decision to effect a disciplinary action.

If an employee discloses what he believes is a violation of 5 U.S.C. § 2302(b)(2), can it form the basis of a protected whistleblowing disclosure?
Yes.  The Board has held that allegations of violations of 5 U.S.C. § 2302(b)(2) and related provisions of law can sometimes constitute whistleblowing.  See McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶¶ 9-13 (2008); see also Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469 (2010).

PROHIBITED PERSONNEL PRACTICE NUMBER 3 - Coercing political activity: Where can I find this prohibition covered in the law?
This prohibited personnel practice (PPP) is listed at section 2302(b)(3) in title 5 of the United States Code.

Where did this provision come from?
While this provision was codified in 1978 within the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111, it has an interesting history dating back nearly 100 years earlier.  From the earliest days of our Nation until 1883, it was common practice for the incoming President’s administration to reward members of his political party with Federal Government appointments within every level of the Executive Branch.  It was likewise expected of such Federal employees to make generous political donations back to their political patron.  Such practices led to public perceptions of widespread corruption and incompetence within the Federal Government. Michael Bogdanow and Hon. Thomas Lanphear, History of the Merit Systems Protection Board, Journal of the Federal Circuit Historical Society, Vol. 4, 109 (2010).

In 1883, Congress began to reign in such practices by passing the Civil Service Act, also known as “The Pendleton Act of 1883.”  This statute required for the first time that a sizeable portion of Federal appointments be made solely based upon the relative merits of the applicants, without regard to their political loyalties.  Over time, this principle was expanded and strengthened to protect all competitive and excepted service positions.  Today, it is a PPP under this statute for a Federal official to coerce any applicant or employee to engage in political activity, or to retaliate against such individuals based on partisan politics.  The Hatch Act of 1939 contains many similar prohibitions, and carries severe penalties.  See 5 U.S.C. § 7321 – 7326.  

If I file an appeal with the Merit Systems Protection Board (MSPB) and claim that the agency violated this provision, will the MSPB hear my claim?
Under 5 U.S.C. Section 7701(c)(2)(B), the MSPB may not sustain a personnel action “based on” a PPP.  Generally, a PPP may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which would include, for example, a removal or suspension of 15 days or more, and means that MSPB has jurisdiction in the case.  

As with the other PPPs, if your claim is filed with MSPB in connection with an otherwise appealable action, we will hear your PPP claim, but only if it is related to the underlying personnel action being appealed.  Such PPP claims will not be heard if your appeal is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities.

If your PPP claim is not within the MSPB’s jurisdiction as explained above, you may still be able to file such a PPP claim with the Office of Special Counsel (OSC), which is a separate and independent executive agency.  As noted above, many of the prohibitions contained in this PPP on political coercion are also covered by the Hatch Act of 1939.  The OSC has authority to investigate potential Hatch Act violations, and to present such claims to MSPB for consideration.  Instructions for filing a PPP or a Hatch Act claim with OSC are provided at http://www.osc.gov

In addition, although probationary employees have no statutory right of appeal to MSPB, under 5 C.F.R. §315.806(b) they may appeal the termination of their appointment if they allege that the action was based on partisan political reasons.

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, a PPP claim is an affirmative defense.  An appellant bears the burden of proving such affirmative defenses by preponderant evidence.  Preponderant evidence is defined in Section 1201 of the MSPB’s regulations as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be accessed through our website at http://www.mspb.gov/appeals/appeals.htm

Does political coercion have to be extreme or perpetrated by a supervisor?
The answer to both questions is no.  The coercion does not have to be extreme to qualify for this PPP, and the employee need not be a supervisor. For example, in Special Counsel v. Ware, 114 M.S.P.R. 128 (2010), a Contracting Officer Technical Representative was removed for using her Government computer to send fundraiser emails to 14 or more individuals, three of whom were not Federal employees, but who she nevertheless exercised some control over because of her influence over a contract.  In its decision to remove the employee, the Board noted its holding in an earlier case, that “[t]he proscriptions of the Hatch Act fall equally on clerks and managers alike.” (The improper political activity in Ware was addressed solely under the Hatch Act, and was not prosecuted as a PPP violation of 5 U.S.C. §  2302(b)(3)).

In another case, Special Counsel v. Acconcia, 107 M.S.P.R. 60, ¶ 5 (2007), the Board explained that “the coercion of political contributions[] is one of ‘the most pernicious of the activities made unlawful by the Hatch Act’” and that a single occasion of soliciting funds from a subordinate for a political campaign warranted removal, even though the supervisor did not specifically attach any threats of consequences for failing to make the requested political contributions.

What penalties are possible for an employee who commits this prohibited personnel practice?
Violation of this PPP carries potentially devastating consequences for the offending employee.  This is because when such conduct also violates the Hatch Act, it carries a presumptive statutory penalty of removal.  Under the Hatch Act, the penalty of removal may be mitigated to no less than a 30 day suspension by a unanimous vote of the Board Members.  See 5 U.S.C. §§ 7324(a)(1) and 7326.

PROHIBITED PERSONNEL PRACTICE NUMBER 4: Obstructing the Right to Compete for Employment. Where is this prohibition covered in the law?
The fourth prohibited personnel practice (PPP) can be found at section 2302(b)(4) in title 5 of the United States Code.

What is the purpose of the fourth prohibited personnel practice?
The fourth PPP is designed to further the intent of The Pendleton Act of 1883 that an individual appointed to the civil service be the best-qualified applicant based on objective criteria.  The intent of the Act should not be thwarted by the personal agenda of anyone with the authority to influence the Government’s employment decisions.  Thus, a person with the authority to take, direct others to take, recommend, or approve a personnel action may not intentionally discourage a person from applying for a Federal position or engage in deception or otherwise raise obstacles to the appointment of a qualified individual.  Everyone should have a fair and equal opportunity to secure Federal employment for which they are qualified.

What exactly is prohibited?
The fourth PPP prohibits any person with the authority to take or influence a personnel action from intentionally taking an action or deceiving someone else in an effort to prevent or obstruct an applicant’s right to a fair and open competition for employment.  Examples of the type of actions that are prohibited may be gleaned from cases in which the fourth PPP is addressed by the U.S. Merit Systems Protection Board (MSPB). 

In Special Counsel v. Ross, 34 M.S.P.R. 197 (1987), the Office of Special Counsel (OSC) brought an action before MSPB, alleging that two respondents, employees in an agency’s personnel office, engaged in conduct designed to eliminate certain qualified candidates from competition in order to employ a person of their choice who was less qualified for the position.  The MSPB found that the respondents: (1) tailored a position description for the position so that their preferred candidate could qualify for the position; (2) intentionally failed to mail inquiries to four qualified candidates concerning their availability for the position; and (3) falsely reported to the Office of Personnel Management the status of certain candidates.  

Another complaint brought by OSC was explained in Special Counsel v. Hoban, 24 M.S.P.R. 154 (1984).  In that case, MSPB found a violation of § 2302(b)(4), when the respondent (1) gave an employee an undeserved lowered performance rating in order to make him a less desirable candidate for a new position; and (2) falsely reported that he had not interviewed another candidate before making a selection while misrepresenting that the candidate refused to return his calls, as a reason for not selecting the candidate.

What is the MSPB’s jurisdiction to review an alleged violation of § 2302(b)(4)?
As mentioned in the discussion of the third PPP, under 5 U.S.C. § 7701, MSPB may not sustain a personnel action “based on” a PPP.  A PPP may be raised as an affirmative defense in an appeal of an otherwise appealable action.  An otherwise appealable action is a personnel action which is subject to the MSPB’s jurisdiction under a law, rule, or regulation.  For example, a removal, suspension of 15 days or more, and a reduction in grade or pay are personnel actions that are directly appealable to MSPB.  The MSPB will review an allegation of a violation of § 2302(b)(4) only if it is related to the personnel action being appealed.  See Finston v. Health Care Financing Administration, 83 M.S.P.R. 100 ¶ 10 (1999) (the Board has no jurisdiction to review an alleged (b)(4) violation absent an action that is otherwise appealable to the Board).  A § 2302(b)(4) claim may not be raised in connection with an appeal filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights); the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination on the basis of military service); or the Whistleblower Protection Act (individual right of action appeals concerning retaliation for making protected disclosures) because such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter statutory authorities.

If the violation is not related to an otherwise appealable action, an individual may file a complaint with OSC, which is a separate, independent executive agency.  The OSC has the authority to investigate alleged violations of §2302(b)(4) and seek corrective action before MSPB.  The instructions for filing a complaint with OSC may be found at its website:  www.osc.gov.  

What type of penalty is imposed when a §  2302(b)(4) violation is found by MSPB?
Pursuant to 5 U.S.C. § 1215(a)(3), MSPB has authority to impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.  In Special Counsel v. Hoban, MSPB adopted the method for selecting penalties in adverse action cases as described in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).  The MSPB will consider those factors that are relevant in an individual case, such as the nature and seriousness of the offense, the employee’s job level; past disciplinary record; length of service; potential for rehabilitation; mitigating factors; and the adequacy of alternative sanctions.

In Special Counsel v. Ross, the selected penalty for the two respondents was a reduction in grade for a period of no less than one year.  In Hoban, the penalty imposed was also a reduction in grade.

PROHIBITED PERSONNEL PRACTICE NUMBER 5: Influencing Withdrawal from Competition - Where can I find this provision?
It was part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  Like the other prohibited personnel practices discussed in this series, it is codified at 5 U.S.C. § 2302(b)

What is the purpose of this provision?
It eliminates one way that individuals might otherwise try to subvert the competitive process.  The civil service system is based on the idea that employees should be selected through fair and open competition.  5 U.S.C. § 2301(b)(1).  When filing vacancies in the competitive service through examination, selecting officials generally must select one of the top three ranked candidates on a certificate.  5 C.F.R. § 332.404.  If not for this prohibited personnel practice, they might try to ensure that their preferred candidates were among the top three, and thus eligible to be selected, by pressuring higher-ranked candidates to withdraw their applications.

What must be shown to establish a violation of this provision?
There are two elements that both must be present for a person to violate this provision.  First, the individual must have influenced or attempted to influence a person to withdraw from competition.  Attempting to influence is enough even if the attempt does not succeed.  Second, the person must have done so with the intent to improve or injure someone’s employment prospects.  Special Counsel v. Brown, 61 M.S.P.R. 559, 565 (1994). 

In what kinds of situations does this practice typically arise?
Violations often involve situations where an agency passed over applicants who were entitled to priority—for example, veterans—without following the proper procedures for doing so.  After the agency hired its preferred candidate, it realized that there were other applicants who had priority.  In an effort to avoid having to terminate the candidate who was hired, an individual may try to convince the applicants who have priority to withdraw their applications.  This is a prohibited personnel practice.  See, e.g., Filiberti v. Merit Systems Protection Board, 804 F.2d 1504 (9th Cir. 1986) (veterans preference); Brown, 61 M.S.P.R. at 563 (priority under displaced-employee program).

How do I pursue a claim that someone violated this provision?
The Office of Special Counsel (OSC) receives and investigates claims of prohibited personnel practices, including this provision.  5 U.S.C. § 1214(a)(1)(A).  If OSC concludes that there has been a violation, it may request the Merit Systems Protection Board (MSPB) to impose discipline against the violator.  Id. § 1215.  The case will be heard by an administrative law judge, who will make an initial decision that can be appealed to the Board.  5 C.F.R. § 1201.125.

An individual employee also could, in theory, raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB’s jurisdiction, such as a removal, but it is difficult to imagine in practice how such a defense would arise.  5 U.S.C. § 7701(c)(2)(B).  Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual (as opposed to OSC) that this provision has been violated.  See Gaugh v. Social Security Administration, 87 M.S.P.R. 245, ¶ 7 (2000); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).

What penalties may the Board impose for violations of this provision?
The penalties the Board may impose include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to 5 years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3).  Most reported decisions have involved suspensions, fines, or both.  See, e.g., Filiberti, 804 F.2d at 1510-11 (60-day suspensions); Brown, 61 M.S.P.R. at 574 (90-day suspension for one offender and $1000 fine for the other); Special Counsel v. Judson, 43 M.S.P.R. 61 (1989) (30-day suspension); Special Counsel v. Heyel, 35 M.S.P.R. 402 (1987) ($1000 fine); Special Counsel v. Ross, 34 M.S.P.R. 197 (1987) (one- and two-grade demotions); Special Counsel v. Waddams, 34 M.S.P.R. 84 (1987) (debarment from Federal employment for three years plus fines of $750 and $500; for a third respondent, fine of $350); Special Counsel v. Evans-Hamilton, 29 M.S.P.R. 516 (1984) (30-day suspension); Special Counsel v. Verrot, 18 M.S.P.R. 714 (1984) (60-day suspension plus $1000 fine).  Note that some of these cases also involved other charges beyond influencing an applicant to withdraw.

Has MSPB studied this practice?
Yes.  In its report Prohibited Personnel Practices: Employee Perceptions, the Board reported that perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, only 2.2% of Federal employees who responded to MSPB’s survey reported that they had been influenced to withdraw from competition in the preceding two years, less than half as often as such violations had been reported in 1996.  Id. at 30. 

Does this provision prohibit someone from honestly advising an applicant that a job might not be the best fit for her?
No.  The provision does not bar a person from counseling an applicant to withdraw for legitimate reasons, because that counseling is not intended to injure the applicant’s employment prospects (or improve another applicant’s prospects).  The provision is violated only when the person acts with the purpose of injuring the applicant’s prospects or improving another applicant’s prospects.  Filiberti, 804 F.2d at 1510.

Are individuals safe from discipline if they give only true information?
Not necessarily.  Even giving an applicant true information about the position may violate this provision if it is done with the intent to improve or injure someone’s employment prospects.  In Filiberti, for example, agency officials told the applicant that his moving expenses would not be paid, that the position required extensive travel at a moment’s notice, that his military retirement pay might be reduced if he accepted the position, that the cost of living in the San Francisco area was high, and that it was uncertain what effect a pending merger between the agency (a division of the Navy) and the Army might have on the position.  804 F.2d at 1507.  Even though all of this information may have been true, a prohibited personnel practice occurred because the officials gave information to the applicant for the purpose of dissuading him from continuing with his application so that they could hire someone else.  Id. at 1510.

Are there regulations on the same topic?
The Office of Personnel Management has promulgated similar but broader regulations that are codified at 5 C.F.R. §§ 4.3 and 330.1001The regulations apply to any employee or applicant, and cover not only inducing others to withdraw but also dissuading them from applying in the first place.  Applicants who violate the regulations will have their applications cancelled and may be subject to other penalties.  5 C.F.R. § 330.1001.

PROHIBITED PERSONNEL PRACTICE NUMBER 6 - Granting Any Preference or Advantage Not Authorized by LawWhere is this prohibition covered in the law?
The sixth prohibited personnel practice (PPP) can be found at section 2302(b)(6) in title 5 of the United States Code. 

What is the purpose of the sixth prohibited personnel practice?
This provision supports the first Merit System Principle which asserts that recruitment, selection and advancement should be merit-based.  See 5 U.S.C. § 2301(b)(1).  This PPP is designed to prevent an agency from giving an improper advantage in promoting an employee or in selecting an applicant for a position in federal employment.  See 5 U.S.C. § 2302(b)(6).  It complements and supports the same goal of fair competition as do PPPs 4 and 5, which prohibit obstructing the right to compete and influencing a person to withdraw from competition.

It should be noted that some employment preferences are authorized by law, so they would not be prohibited.  For example, there is a veterans’ preference statute that gives eligible veterans preference in appointment over many other applicants.  See 5 U.S.C. § 2108.

What exactly is prohibited?
To establish a violation of 5 U.S.C. § 2302(b)(6), Merit Systems Protection Board (MSPB or Board) case law requires proof of an intentional or purposeful taking of a personnel action in such a way as to give a preference to a particular individual for the purpose of improving his or her prospects.  See Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994) (Table).  The preference must be given for the purpose of providing an improper advantage.  In other words, an improper motive must be shown.  See Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 (2010), rev’d in part, 413 F. App’x. 298 (Fed. Cir. 2011).  However, it is not necessary that the action actually have resulted in an advantage, only that its purpose be to give an advantage.  Special Counsel v. DeFord, 28 M.S.P.R. 98, 104 (1985). 

It is possible to violate section 2302(b)(6) using legally permissible hiring actions if the intent is to afford preferential treatment to an individual.  See Lee, 114 M.S.P.R. 57,  21.  Conversely, hiring actions that have the unintentional effect of favoring one applicant over another would not violate section 2302(b)(6).  See id.  The Board also has found, based on the wording of the statute, that it does not prohibit actions improperly advantaging a class of persons, only an individual.  See Avery v. Office of Personnel Management, 94 M.S.P.R. 212, ¶ 5 (2003).

What is MSPB’s jurisdiction to review an alleged violation of 5 U.S.C. § 2302(b)(6)?
The MSPB will consider an alleged instance of this PPP as an affirmative defense in connection with the filing of an appeal.  However, MSPB cannot review a violation of section 2302(b)(6) unless it is related to an otherwise appealable action.  See Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 16 (2007). 

Additionally, an individual may file a complaint with the Office of Special Counsel (OSC), which is a separate, independent executive agency with the authority to investigate violations of section 2302(b)(6) and to seek corrective action before the MSPB.  See 5 U.S.C. §§ 1214(a)(1)(A), (a)(5).  The instructions for filing a complaint with OSC may be found at its website:  www.osc.gov

What type of penalty is imposed when a section 2302(b)(6) violation is found?
The Special Counsel may petition MSPB to discipline an employee for committing this PPP.  See 5 U.S.C. §1215(a)(1)(A).  The penalties assessed against the employee can include disciplinary action consisting of a reprimand, a removal, a reduction in grade, a suspension, debarment from Federal employment for up to five years, or an assessment of a civil penalty not to exceed $1,000.  See 5 U.S.C. § 1215(a)(3).

In assessing the penalty, MSPB takes into account the relevant factors enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).  The MSPB will consider, first and foremost, the nature and seriousness of the misconduct and its relationship to the employee’s position and responsibilities, including whether the offense was intentional or was frequently repeated.  See Lee, 114 M.S.P.R. 57, ¶ 36; Byrd, 59 M.S.P.R. 561, 582-83.

Has the Board recently issued any significant decisions addressing this PPP?
Yes.  In Special Counsel v. Lee, 114 M.S.P.R. 57 (2010), rev’d in part, 413 F. App’x. 298 (Fed. Cir. 2011), OSC brought two complaints before the Board, alleging that Richard F. Lee and Diane L. Beatrez, Human Resource (HR) Specialists for the Coast Guard, violated section 2302(b)(6) when they assisted in promoting a particular individual to a supervisory position.  The Board stated that Lee and Beatrez could be held liable under the statute because there was “a pattern of cooperation” between the HR specialists and the supervisor who sought to promote a particular individual.  Id., ¶ 25.  The Board held that the HR specialists were liable for this PPP under the theory that “conduct that aids and abets another who is violating the statute” also violates section 2302(b)(6).  Id., ¶ 32.  The Board noted that, by holding the HR specialists liable, they were “mindful of [the Board’s] obligation to faithfully uphold the merit system principles as set forth by Congress”.  Id., ¶ 35.  As a consequence, the Board imposed a 45-day suspension without pay on Lee and a 10-day suspension without pay on Beatrez.  See id., ¶ 50.  The Court of Appeals for the Federal Circuit later held on review that there was insufficient evidence to establish that Beatrez had the requisite intent to aid in the commission of a PPP and reversed the action against her.  See Beatrez v. Merit Systems Protection Board, 413 F. App’x. 298 (Fed. Cir. 2011) (NP).  The court did not disagree with the Board’s finding that any of the actions taken by the employees, if done with the requisite intent, would properly constitute a PPP under § 2302(b)(6).

Has MSPB studied this practice?
Yes.  In its report “Prohibited Personnel Practices:  Employee Perceptions” (2011), the Board noted that Federal employees perceive this PPP occurring more than any other PPP.  The Board also explained that an important lesson to be learned from the case law is that an official can be held liable for violating section 2302(b)(6) if the official commits a PPP or intentionally assists someone else to commit a PPP, even when the employee’s superiors are aware of what is happening and view the PPP as a solution to a problem.  In its report, “Fair and Equitable Treatment: Progress Made and Challenges Remaining” (2009), the Board noted that Federal employee suspicions regarding blatant forms of discrimination have been supplanted by a growing skepticism about managers making their decisions in accord with the merit system principles.  In a recent MSPB Government-wide survey, over 70 percent of employees believed that some supervisors practice favoritism.  In its report, “Prohibited Personnel Practices:  A Study Retrospective” (2010), the Board summarized a number of its prior studies that examined perceptions of unfair competition and unfair advantage in hiring and promotion in Federal employment and explained that such perceptions were a longstanding problem.

What other guidance is out there concerning this PPP?
The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition.  These rules cover recruitment and selection for initial appointment as well as promotion in accordance with a merit-based system.  See e.g., 5 C.F.R. parts 300A, 302, 330, 332.

PROHIBITED PERSONNEL PRACTICE NUMBER 7: Where can I find the provision on nepotism?
It was part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  Like the other prohibited personnel practices (PPP) discussed in this series, it is codified at 5 U.S.C. § 2302(b).  Nepotism is addressed at prohibited personnel practice number 7.  Specific restrictions on the employment of relatives are also set forth at 5 U.S.C. § 3110, which pre-dates the codification of prohibited personnel practices.

What is the purpose of this provision?
Nepotism comes from the Latin word for “nephew” and is defined as patronage bestowed or favoritism shown on the basis of family relationship.  The civil service system is based on the idea that employees should be selected through fair and open competition and promoted on the basis of their individual merit.  Since the passage of the Pendleton Act of 1883, to which the Merit Systems Protection Board (MSPB) traces its own roots, favoritism based on family relationship has been frowned upon; with the Civil Service Reform Act of 1978, it was specifically proscribed.  The proscription is not absolute.  Rather it tracks the general societal construct that, other than in family-run private businesses, favoritism towards relatives is fraught with potential conflicts that might impede any meritocratic enterprise.  In order to limit even the appearance of improper favoritism towards relatives, this provision assures that public officials cannot use their influence to advance their relatives in hiring or career advancement.  It does not prohibit family members from honorable public service, but simply proscribes improper influence by their relatives in derogation of the merit system. 

For prohibited nepotism to occur there must be the act of advocacy.  For example, in Wallace v. Department of Commerce, 106 M.S.P.R. 23, ¶ 2 (2007), Wallace was a high-ranking official who became aware that her sister was interested in a position that fell under Wallace’s authority.  Wallace notified senior management that her sister was interested in applying for the vacancy and that “she was recusing herself from any input or involvement in the hiring process for the position and further sought… guidance on how to ensure that a fair and impartial selection could occur.”  Wallace’s sister was ultimately selected for the position, but the Board held that the PPP of nepotism did not occur because the agency “failed to establish that Wallace’s mere presence in the chain of command” at the time of the selection constituted a violation of the nepotism statute.  Id. at 69.  In other words, the necessary advocacy or act to further the sister’s employment was missing from this case.  The Board made a similar finding in Alexander v. Department of the Navy, 24 M.S.P.R. 621, 625 (1984), where it found that the person to whom the appellant mentioned that his daughter was looking for a job was not his subordinate and there was no evidence that he “spoke in favor of, recommended, commended, or endorsed” his daughter’s employment.

It is, perhaps, interesting to note that the proscription against nepotism, for which the relevant relationships are so clearly defined, does not include some modern relationships which, though not spousal, are similarly close, e.g., cohabitating unmarried couples (regardless of sexual orientation).  Improper favoritism involving such relationships would be prohibited under some other PPP, e.g., PPP number 6.  Nor does PPP number 7 extend to the hiring of friends and acquaintances.  See Special Counsel v. Nichols, 36 M.S.P.R. 445, 455 (1988).

How does the issue of prohibited nepotism arise in MSPB cases?
It arises most frequently in one of two ways:  as a charge upon which an employee has been disciplined for violating the prohibition (or an agency’s internal disciplinary prohibition that is similar to the PPP), or as an affirmative defense that an action taken was taken in reprisal for the appellant having blown the whistle on someone for a nepotism violation.  An example of the latter is Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 283 (2006), where the Board found that the appellant made a non-frivolous allegation that he made a protected disclosure because a reasonable person in his position could believe that his supervisor was violating 5 U.S.C. §§ 2302(b)(7) and 3110 by employing her son and/or assisting in the advancement of her son by giving him preferential treatment in training, assuming that those allegations are true.

How do I pursue a claim that someone violated this provision?
The Office of Special Counsel (OSC) receives and investigates claims of prohibited personnel practices, including this provision.  5 U.S.C. § 1214(a)(1)(A).  If OSC concludes that there has been a violation, it may request that MSPB impose discipline against the violator.  Id. § 1215.  The case will be heard by an administrative law judge who will make an initial decision that can be appealed to the Board.  5 C.F.R. § 1201.125.  An individual employee also could raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB’s jurisdiction, such as a removal.  5 U.S.C. § 7701(c)(2)(B).  Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual (as opposed to OSC) that prohibited personnel practices have been committed.  See Gaugh v. Social Security Administration, 87 M.S.P.R. 245, ¶ 7 (2000); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).

What penalties may MSPB impose for violations of this provision?
The penalties MSPB may impose include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to 5 years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3)

Has MSPB studied this practice?
Yes.  For over 30 years MSPB has surveyed Federal employees to determine their perceptions of the incidence of prohibited personnel practices in the Federal civilian service.  Results of survey items pertaining to nepotism were most recently summarized in the 2011 report, Prohibited Personnel Practices: Employee Perceptions.  According to this report, perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, only 1.7% of Federal employees who responded to MSPB’s survey reported that they had been personally affected by someone advocating for a relative.  Id. at 32.   This may explain the paucity of cases substantively addressing nepotism issues. 

Other MSPB reports that discuss nepotism and summarize survey data regarding employee perceptions of this practice include: Prohibited Personnel Practices—A Study Retrospective (2010) and The Federal Government: A Model Employer of a Work In Progress? (2008).  All MSPB study reports can be found at www.mspb.gov/studies.

PROHIBITED PERSONNEL PRACTICE NUMBER 8 - Whistleblower Protection

Where can I find this provision?
This month’s prohibited personnel practice is part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  It is codified at 5 U.S.C. § 2302(b)(8), with the other prohibited personnel practices (PPP).

What is the eighth prohibited personnel practice?
Under the law, any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of —

  1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences - -
    1. a violation of any law, rule, or regulation, or
    2. gross mismanagement, a gross waste of funds, an abuse of authority, or
      a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

In addition, even disclosures that are prohibited by law or required to be kept secret are protected if they are made to the Special Counsel or to an agency’s Inspector General.

What is the purpose of the eighth prohibited personnel practice?
Simply put, this PPP protects Federal employees and applicants from retaliation if they make a disclosure as defined by 2302(b)(8)(A)(i) and/or (ii), and also serves to eliminate Government wrongdoing by mandating that employees or applicants should not suffer adverse consequences for making such disclosures.  Schmittling v. Department of Army, 92 M.S.P.R. 572, ¶¶ 16 and 17 (2002).  “Adverse consequences” includes a personnel action that is taken as well as a personnel action that is not taken and even one that is threatened as a result of such a disclosure.  A “disclosure” under this section is also referred to as a “whistleblower disclosure” or a “protected disclosure.”

What is the difference between section 2302(b)(8) and section 2302(b)(9)?
Allegations of reprisal “based upon exercising one’s right to complain” are protected under 5 U.S.C. § 2302(b)(9), while those that are “based on disclosure of information,” are protected under 5 U.S.C. § 2302(b)(8).  Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1574-75 (Fed. Cir. 1996); Luecht v. Department of Navy, 87 M.S.P.R. 297, ¶ 9 (2000).   For example, allegations of reprisal based upon Equal Employment Opportunity (EEO) or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act and, therefore, are outside the Merit Systems Protection Board’s (MSPB or the Board) individual right of action appeal jurisdiction.  Mason v. Department of Homeland Security, 116 M.S.P.R. 135, 145 n.6 (2011). 

How can I raise an alleged violation of section 2302(b)(8) with MSPB?
There are two avenues by which an individual may pursue an alleged violation of section 2302(b)(8) with MSPB.  Specifically, an appellant may raise a whistleblower claim in the context of an otherwise appealable action or in an Individual Right of Action appeal pursuant to the Whistleblower Protection Act.  5 U.S.C. § 1221(a).

How do I raise a section 2302(b)(8) claim in the context of an “otherwise appealable” action?
When MSPB has jurisdiction over a claim filed by an appellant, the appellant may, with some exceptions, also raise an “affirmative defense” by claiming that the agency’s personnel action was the product of retaliation for his or her whistleblowing activity.  An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven.

5 C.F.R. § 1201.56(b).  Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U.S.C. § 7511(a) and the employee files an MSPB appeal from this action under 5 U.S.C. § 7513, the employee may also raise a claim (affirmative defense) that the agency took the action at issue in retaliation for his or her protected whistleblowing activity.  See www.mspb.gov/appeals/whistleblower.htm.

How do I prove the agency violated section 2302(b)(8) in the context of an “otherwise appealable” action?
In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her. 

5 U.S.C. § 1221(e)(1); Ryan v. Department of the Air Force, 117 M.S.P.R. 362, ¶ 12 (2012).  Prima facie means that a party produces evidence that – unless rebutted – is sufficient to prove a particular proposition or fact.  Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 

5 C.F.R. § 1201.56(c)(2).  The term protected disclosure means a disclosure of information an employee reasonably believes evidences a 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 and safety. 

5 U.S.C. § 2302(b)(8).  Significantly, however, vague or conclusory allegations of wrongdoing are generally not protected disclosures.  Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 13 (2007).  Contributing factor means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. 

5 C.F.R. § 1209.4(c). A personnel action means: (1) an appointment; (2) a promotion; (3) an adverse action as defined by section 7512 or other disciplinary or corrective action; (4) a detail, transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation; (9) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; (10) an order for psychiatric testing or examination; and (11) any other significant change in duties, responsibilities, or working conditions.  5 U.S.C. § 2302(a)(2)(A); 5 C.F.R. § 1209.4(a).  See also www.mspb.gov/appeals/whistleblower.htm.

If I establish a prima facie case of retaliation under section 2302(b)(8) in an otherwise appealable action, will I prevail? 
No, not necessarily.  Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. 

5 U.S.C. § 1221(e)(2); Fellhoelter v. Department of Agriculture, 568 F.3d 965, 970-71 (Fed. Cir. 2009); Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010).  Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence.

5 C.F.R. § 1209.4(d).  If the agency fails to demonstrate that it would have taken this action in the absence of the disclosure, then the employee prevails.  See also www.mspb.gov/appeals/whistleblower.htm.

How do I raise a section 2302(b)(8) claim in the context of an Individual Right of Action (IRA) appeal?
The Board has jurisdiction over an IRA appeal when an employee, former employee, or applicant for Federal employment demonstrates that he or she has exhausted administrative remedies before the Office of Special Counsel (OSC)  and makes nonfrivolous allegations that:  (1) he or she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take, or threaten to take or fail to take, a personnel action covered by section 2302.  Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).  See also www.mspb.gov/appeals/whistleblower.htm.

How do I exhaust my administrative remedies before OSC? 
To meet the exhaustion requirement, the appellant must prove by preponderant evidence that he or she filed a complaint with OSC and provided OSC with a sufficient basis to pursue an investigation which might have led to corrective action.  The MSPB’s jurisdiction in an IRA appeal is limited to issues the appellant raised before OSC.  Briley v. National Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001); Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).  The Board will only consider the actual claims the appellant made to OSC in the complaint and not the individual’s later characterization of those statements before the Board.  Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶ 13 (2010).  See also www.mspb.gov/appeals/whistleblower.htm.

Are there any time limits for filing a section 2302(b)(8) claim with MSPB?
Yes.  When the appellant raises a whistleblower retaliation claim (affirmative defense) in the context of an otherwise appealable action, he or she must file an MSPB appeal no later than 30 days after the effective date of the agency’s action, or 30 days after the date of the appellant’s receipt of the agency’s decision from the action, whichever is later. 

5 C.F.R. § 1201.22(b).  In contrast, when the appellant raises a whistleblower claim in the context of an IRA appeal, the appeal must be filed within 65 days after the date OSC notifies the appellant in writing that it is terminating its investigation into the appellant’s allegations or, if no action is taken by OSC within 120 days of the date the individual filed their complaint with OSC, at any time after 120 days have passed.  5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.5(a).  See also www.mspb.gov/appeals/whistleblower.htm.

If I establish that MSPB has jurisdiction over my section 2302(b)(8) claim as an IRA, how do I prevail?
Once an employee, former employee or applicant for Federal employment demonstrates that the Board has jurisdiction over his or her IRA appeal, the appellant will prevail if:  (1) he or she proves by preponderant evidence that he or she made a protected disclosure that was a contributing factor in a personnel action at issue; and (2) the agency fails to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. 

An appellant is not required to prove the merits of their protected disclosure.  Rather, the appellant must establish only that he or she had a reasonable belief that he or she was disclosing gross mismanagement, a gross waste of funds, an abuse of authority, a violation of law, rule, or regulation, or a substantial and specific danger to public health or safety.   The proper test for determining whether an employee had a “reasonable belief” that his disclosures revealed misconduct so as to be protected under the WPA is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government evidence wrongdoing as defined by the WPA.  See Downing v. Department of Labor, 98 M.S.P.R. 64, 69-70 (2004).  See also www.mspb.gov/appeals/whistleblower.htm.

If I prevail on a claim that an agency violated section 2302(b)(8), what type of corrective action may MSPB order?
If an appellant prevails on a 2302(b)(8) whistleblower claim, MSPB may, depending on the circumstances, order:  (1) that the agency place the individual in the position the individual would have been in had the prohibited personnel practice not occurred; (2) back pay and related benefits; (3) medical costs incurred; (4) travel expenses; (5) any other reasonable and foreseeable consequential damages; and (6) attorney fees and costs.  5 U.S.C. § 1221(g).

Are there any recent decisions of note by the courts or MSPB that address this PPP?
There are too many to discuss in this brief article, but here are two examples.
Although the Board’s case law states that disclosure of information that is publicly known is not a disclosure under the WPA, the Board qualified this requirement when it held that if an employee’s disclosure adds “additional information necessary to recognize” the nature or seriousness of a publicly known problem, and this is information the public would not have otherwise had, then the disclosure is protected under the WPA.  Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 9 (2009). 

For many years, the Board and the courts found the WPA did not protect disclosures regarding policy disputes where “reasonable people” might disagree over the merits of a given policy.  See, e.g., White v. Department of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004).  In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people.  Nevertheless, the U.S. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA’s protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety.  Chambers v. Department of the Interior, 515 F.3d 1362, 1368-1370 (Fed. Cir. 2008); see also Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 16-24 (2011)

Has MSPB studied this practice?
Yes, MSPB most recently studied this prohibited personnel practice in its November, 2011 report, Blowing the Whistle:  Barriers to Federal Employees Making Disclosures. This report discusses results from MSPB’s 2010 Merit Principles Survey regarding perceptions related to whistleblowing and provides a comparison to the results of a similar survey MSPB conducted in 1992.

Data from these surveys indicate that since 1992, the percentage of employees who perceive any wrongdoing has decreased.  However, perceptions of retaliation against those who blow the whistle remain a serious concern.  In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both.

Our survey data indicate that the most important factor for employees when deciding whether to report wrongdoing is not about the personal consequences employees may experience.  Saving lives was more important to survey respondents than whether they would experience punishment or a reward.  In addition, whether the agency would act on a report of wrongdoing mattered more than any fear of an unpleasant consequence for the employee making the report.  This means that agencies have the power to influence employees’ decisions about reporting wrongdoing.  The most important step that agencies can take to prevent wrongdoing may be the creation of a culture that supports whistleblowing.

Other MSPB reports that discuss this prohibited personnel practice include Whistleblower Protections for Federal Employees(2010) and Prohibited Personnel Practices: Employee Perceptions (2011).  All MSPB study reports can be found at www.mspb.gov/studies.

PROHIBITED PERSONNEL PRACTICE NUMBER 9: Protected Activity. Where can I find provision Number 9 - Protected Activity?
It was part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111
.  It is codified at 5 U.S.C. § 2302(b)(9), with the other prohibited personnel practices (PPP). 

What is the ninth prohibited personnel practice?
Under the law, any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of —
         (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
         (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);
         (C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
         (D) for refusing to obey an order that would require the individual to violate a law.

What is the purpose of the ninth prohibited personnel practice?
Simply put, this PPP protects Federal employees and applicants for employment from retaliation when they exercise certain legal rights, when they cooperate with an Inspector General or Office of Special Counsel (OSC) investigation, or when they refuse to obey an order requiring them to violate a law.  The guarantee of freedom from reprisal extends to any person who seeks the assistance of a remedial administrative process, and the law is designed to ensure the integrity of the process.  As an example, in Matter of Frazier, 1 M.S.P.R. 163 (1979), a supervisor “suggested to [Mr.] Frazier that he could expect to encounter less difficulty in his work if he dropped his union and [Equal Employment Opportunity (EEO)] responsibilities” and “offered to drop [a] proposed letter of reprimand … in return for” Mr. Frazier ending his collateral duties as an EEO counselor.  Soon after, Mr. Frazier resigned from those duties, and the agency rescinded the proposed letter of reprimand.  The Merit Systems Protection Board (MSPB or Board) held that the supervisor’s conduct was because of Mr. Frazier’s protected activities and constituted the commission of a PPP.

How do Federal employees show that they were retaliated against in violation of the ninth PPP?
To establish a prima facie case of retaliation under section 2302(b)(9), the employee must show that: he or she engaged in a statutorily-protected activity; he or she was subsequently treated adversely by the agency; the deciding official (the person authorized to make the final decision on a disciplinary action) had actual or constructive knowledge that the employee engaged in the protected activity; and a causal connection exists between the protected activity and the personnel action.  Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶ 10 (2010).  Prima facie means that a party produces evidence that – unless rebutted – is sufficient to prove a particular proposition or fact.  Once a prima facie case is established, the agency must demonstrate that the action would have been taken even in the absence of any protected activity.  Gerlach v. Federal Trade Commission, 9 M.S.P.R. 268, 271, 274-75 (1981) (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)). 

What is the difference between section 2302(b)(9) and section 2302(b)(8) (whistleblowing)?
Allegations of reprisal “based upon exercising one’s right to complain” are protected under 5 U.S.C. § 2302(b)(9), while those that are “based on disclosure of information” are protected under 5 U.S.C. § 2302(b)(8).  Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1574-75 (Fed. Cir. 1996); Luecht v. Department of Navy, 87 M.S.P.R. 297, ¶ 9 (2000).   Therefore, allegations of reprisal based upon EEO or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act, and thus they are outside MSPB’s individual right of action appeal jurisdiction.  Mason v. Department of Homeland Security, 116 M.S.P.R. 135, 145 n.6 (2011). 

May I file a direct appeal to MSPB to remedy violations of section 2302(b)(9)?
If an agency takes an “otherwise appealable action,” such as a removal, a suspension of more than 14 days, or a demotion, against an employee, then he or she may raise violations of  section 2302(b)(9) as an “affirmative defense” to that action.  See 5 U.S.C. § 7512; Booker v. U.S. Postal Service, 53 M.S.P.R. 507, 509, aff’d, 982 F.2d 517 (Fed. Cir. 1992), cert. denied, 510 U.S. 862 (1993); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).  An affirmative defense occurs when an employee claims that an action should not be sustained because: (1) there was a harmful error in the agency’s procedures for taking the action; (2) the decision was based on a PPP; or (3) the decision was otherwise not in accordance with the law.  5 U.S.C. § 7701(c)(2).  While an agency has the burden to prove that its action is supported by a preponderance of the evidence, the appellant asserting an affirmative defense bears the burden to prove the affirmative defense by a preponderance of the evidence.  5 C.F.R. § 1201.56(a)(2).
In the absence of an “otherwise appealable action,” allegations of PPPs under 5 U.S.C. § 2302(b)(9) do not confer independent jurisdiction on MSPB.  Thus, if an employee believes that an employing agency has taken a personnel action against him or her in violation of section 2302(b)(9), MSPB will not be able to adjudicate the appeal unless the agency has also taken an “otherwise appealable action” against the employee. 

If MSPB does not have jurisdiction over my case as an “otherwise appealable action,” then how do I pursue a claim that someone violated this provision?
If MSPB does not otherwise have jurisdiction to review a PPP claim, an employee may file a complaint with the OSCKing v. Jerome, 42 F.3d 1371, 1375 (Fed. Cir. 1994).  The OSC can investigate allegations of PPPs, secure corrective action, and bring action against employees who commit such acts.  5 U.S.C. § 1214(a)(1)(A).  The OSC may file a complaint with MSPB, which will be heard by an administrative law judge.  5 C.F.R. § 1201.125.  To establish a violation of this section, OSC must show: (1) the employee engaged in an activity protected by the statute; (2) the employee was subsequently treated adversely; (3) agency officials knew or had constructive knowledge that the employee engaged in protected activity; (4) there was a causal connection between the protected activity and the personnel action; and (5) the protected activity was a significant factor in the taking of the action.  Harvey v. Merit Systems Protection Board, 802 F.2d 537, 547 (D.C. Cir. 1986).  

What penalties may MSPB impose for violations of this provision?
The MSPB may impose penalties for violation of this provision, to include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to five years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3); see Special Counsel v. Nielson, 71 M.S.P.R. 161, 179-80 (1996).  In determining the appropriate penalty to impose in Special Counsel disciplinary actions, MSPB applies its decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which describes factors to consider when assessing a penalty, although not all of the listed factors will be pertinent in every case.  Special Counsel v. Hathaway, 49 M.S.P.R. 595, 612 (1991), aff’d, 981 F.2d 1237 (Fed. Cir. 1992).

Does the ninth PPP include retaliation for filing an EEO complaint?
As stated above, retaliation for exercising appeal, grievance, or complaint rights is generally covered by 5 U.S.C. § 2302(b)(9).  In addition, MSPB recognizes a claim of retaliation for filing a discrimination complaint, as opposed to, for example, retaliation for filing a grievance, as equivalent to prohibited discrimination under 5 U.S.C. § 2302(b)(1)See Mahaffey v. Department of Agriculture, 105 M.S.P.R. 347, ¶ 20 n.8 (2007).  Significantly, this categorization of retaliation for filing a discrimination complaint can lead to situations where MSPB will review an agency action that might otherwise have been barred from review under a collective bargaining agreement.  5 U.S.C. § 7121(d). 

Are compensatory damages available for violations of the ninth PPP?
If an appellant prevails on a 2302(b)(1) and (9) EEO claim, he or she may be eligible to receive compensatory damages.  See Edwards v. U.S. Postal Service, 112 M.S.P.R. 196, ¶¶ 16-17 (2009).  For instance, if an appellant proves that an agency discriminated against him or her, MSPB could order the agency to pay for expenses related to moving, looking for another job, or medical treatment if those expenses were incurred because of the retaliatory action.  It might also order the agency to pay for “nonpecuniary losses” such as pain, suffering, and loss of enjoyment of life.  5 C.F.R. § 1201.202(c).  In the case of Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 14 (2000), the Board found that the appellant might be entitled to compensatory damages based on his claims of gender and disability discrimination under Title VII of the Civil Rights Act of 1964 and his claim of retaliation for prior EEO activity involving Title VII.  The Board also determined, though, that such damages would not be available for Mr. Simonton’s claims of age discrimination or retaliation for pursuing workers’ compensation benefits.

Has MSPB studied this practice?
Yes.  In its report, Prohibited Personnel Practices: Employee Perceptions, MSPB reported that perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, 3.9% of Federal employees who responded to MSPB’s survey reported that they perceived retaliation for filing a grievance or appeal right.  Id. at 33. 

Number 10: Conduct Not Adversely Affecting Performance. Where can I find this provision?
This month’s prohibited personnel practice (PPP) is part of the
Civil Service Reform Act of 1978(the Reform Act), Pub. L. No. 95-454, 92 Stat. 1111. Like the other prohibited personnel practices discussed in this series, it is codified at 5 U.S.C. § 2302(b).

What is the purpose of this provision?
This provision supports the second and the eighth Merit System Principles that all employees and applicants for Federal employment should on the merits receive fair and equitable treatment in all aspects of personnel management with proper regard for their privacy and constitutional rights and should be protected against arbitrary action and personal favoritism. 
5 U.S.C. §§ 2301(b)(2), 2301(b)(8)(A).  The Merit Systems Protection Board (MSPB or Board) examined the legislative history of section 2302(b)(10) in  Merritt v. Department of Justice, 6 M.S.P.R. 585 (1981), distinguished by Kruger v. Department of Justice, 32 M.S.P.R. 71 n. 2 (1987).  During deliberations, Representative Harris, who moved for the adoption of section 2302(b)(10), explained:  “The amendment adds to the prohibited practices this provision which would bar an official from taking action against any employee or applicant for employment as a reprisal for non-job related conduct.  I think it is clear to prohibit discrimination against activities that have no bearing on one's job.  Psychiatry, outside interests, a member of ‘NOW’ or ‘Taxpayers Alliance’ or what have you.”  Merritt, 6 M.S.P.R. at 602.  The Board has held that section 2302(b)(10) is designed to prohibit personnel practices that are taken in response to an employee's off-duty conduct or interests that are unrelated to job performance.  Thompson v. Farm Credit Administration, 51 M.S.P.R. 569 n. 16 (1991) (citing Garrow v. Gramm, 856 F.2d 203, 207 (D.C. Cir. 1988)). 

Further, the Office of Personnel Management (OPM) has interpreted 5 U.S.C. § 2302(b)(10) to prohibit discrimination based upon sexual orientation.  Discrimination in Federal employment because of sexual orientation is prohibited under Exec. Order No. 13,087, reprinted in 42 U.S.C. § 2000e note (2008). 

What must be shown to establish a violation of this provision?
The Board has not established the precise elements for proving a violation of
5 U.S.C. § 2302(b)(10)MacLean v. Department of Homeland Security, 116 M.S.P.R. 562, ¶ 25 (2011), review reinstated by 460 Fed. Appx. 927 (Fed. Cir. 2011).  Depending on the specific facts and circumstances, the proscription of section 2302(b)(10) may be analogous to either (1) the prohibition against retaliation for exercising appeal rights, filing grievances, etc., found at 5 U.S.C. § 2302(b)(9), or to (2) a traditional claim of discrimination governed by the principles of Title VII.  Id.

In what kinds of situations does this practice typically arise?
Initially, this PPP was addressed by the Board shortly after the Reform Act on the question of whether the agency could rely on a rebuttable presumption of nexus or a connection to the efficiency of the service for certain off-duty or criminal misconduct.  See Johnson v. Department of Health & Human Services, 22 M.S.P.R. 521, 524 (1984) (citing to Merritt, 6 M.S.P.R. at 606).  More recently, this PPP has been addressed by the Board on the question of whether the agency’s otherwise appealable action constituted discrimination on the basis of sexual orientation, political beliefs, or participation in certain organizations.  See Mahaffey v. Department of Agriculture, 105 M.S.P.R. 347, ¶ 23 (2007). 

The Equal Employment Opportunity Commission (EEOC) lacks authority to hear allegations of sexual orientation discrimination, but it has recently held that, where a male employee alleged that he was harassed because he was going to marry another man and that the harassment would not have happened if he were a woman marrying a man, the complainant had alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail.  Veretto v. Donahoe, Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011).  Veretto was not a mixed case, and the Board has not yet had an opportunity to rule on this type of issue.  Finally, the position of the Office of Special Counsel (OSC) is that allegations of discrimination based on sexual orientation (as well as on marital status and political affiliation discrimination) may be prohibited personnel practices or other violations of law subject to its investigation.  See www.osc.gov/pppPolicies1.htm.

How do I pursue a claim that someone violated this provision?
The OSC receives and investigates claims of prohibited personnel practices, including this provision. 
5 U.S.C. § 1214(a)(1)(A).  If OSC concludes that there has been a violation, it may request that MSPB take disciplinary action against the violator.   Id. § 1215.  The Special Counsel also may petition the Board for corrective action on behalf of a person who has been or is about to be subjected to a prohibited personnel practice under section 2302(b)(10).  Id. § 1214(b)(2)(C).  In both types of proceedings, the case will be heard by an administrative law judge who will make an initial decision that can be appealed to the full Board.  5 C.F.R. §§ 1201.125, 1201.131

An individual employee also could raise this provision as an affirmative defense to an agency’s adverse personnel action that is within MSPB’s jurisdiction, such as a removal.  5 U.S.C. § 7701(c)(2)(B).  Absent an otherwise appealable matter, MSPB (as opposed to OSC) does not have jurisdiction to hear a claim by an individual that this provision has been violated.  See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).

What penalties may the Board impose for violations of this provision?
In a disciplinary action brought by the Special Counsel, the penalties the Board may impose include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to 5 years; and imposing a fine of up to $1000.
5 U.S.C. § 1215(a)(3).

Are there exceptions to this practice?
Yes.  As authorized by the last provision of § 2301(b)(10), under 5 C.F.R. § 731.202, OPM or an agency with delegated authority, may consider criminal or dishonest conduct against an applicant, appointee, or employee in determining suitability. 

Has MSPB studied this practice?
Yes.  In its report
Prohibited Personnel Practices: Employee Perceptions, the Board reported that in 2010, 2.0 percent of respondents perceived that they were personally affected by discrimination in favor or against someone in a personnel action on the basis of off-duty conduct which was entirely unrelated to the job.  An additional 5.6 percent reported that they observed such discrimination without being personally affected.  Id. at 36.  Also, 1.1 percent reported they were personally affected by discrimination based on sexual orientation, while 3.2 percent reported observing the discrimination without being personally affected.  Id. at 34.

Number 11: Violating Veterans' Preference

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority –

(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement;1 or

(B) Knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement;2

 

Where is this Prohibited Personnel Practice (PPP) found in the law?

This 11th PPP is set forth in subsection 2302(b)(11) of Title 5 of the United States Code.  It was added to subsection 2302(b) by the Veterans Employment Opportunities Act of 1998 (VEOA), Public Law 105-339, §6.  The VEOA permits individuals who believe their veterans’ preference rights have been violated to appeal to the Merit Systems Protection Board (MSPB or Board) after review by the Department of Labor (DOL) has not resulted in corrective action.  For a discussion of the Board’s jurisdiction in VEOA cases, see Willingham v. Department of the Navy, 118 M.S.P.R. 21 (2012). 

What is the purpose of 5 U.S.C. § 2302(b)(11)?

The VEOA strengthened and broadened the applicability of veterans’ preference, Government-wide, in order to improve redress for preference eligibles.  S. Rep. No. 105-340, at 14-18 (1998).

Subsection 2302(b)(11) reinforces the Government’s commitment to protecting and preserving the rights of veterans by making it a PPP to knowingly violate certain veterans’ preference laws, rules, and regulations.  During the March 24, 1998 Senate hearing on VEOA, Senator Chuck Hagel, a principal sponsor of the legislation, stated that adding 2302(b)(11) to the list of PPPs would put “teeth” into the veterans’ preference statute. 

Further information about veterans’ preference rights can be found on the Office of Personnel Management’s website at http://www.opm.gov/staffingportal/vetguide.asp and DOL’s website at http://www.dol.gov/elaws/evets.htm

What is MSPB’s jurisdiction to review an alleged violation of 5 U.S.C. § 2302(b)(11)?

As with most PPPs, an alleged violation of section 2302(b)(11) alone is not a basis for MSPB appellate jurisdiction.  Such a violation can be raised before MSPB only as an affirmative defense in a matter over which the MSPB otherwise has appellate jurisdiction.  See Davis v. Department of Defense, 105 M.S.P.R. 604 (2007).

Does 2302(b)(11) cover all “veterans’ preference requirements”?

No.  As indicated in footnote 1, it includes only those requirements that are specified in 2302(e)(1).  For example, 5 U.S.C. § 3304 (competitive examinations) is a statutory provision that is not specified in 2302(e)(1).  Therefore, neither this statute nor its implementing regulations at 5 C.F.R. Part 337 (examining system) may form the basis for a claim that 2302(b)(11) has been violated.  Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98 (2000). 

Does a statute’s exclusion from 2302(e)(1) preclude a VEOA claim based on that statute?

No.  These are two separate provisions of law.  Commission of a PPP under 2302(b)(11) is not necessary for a viable claim under VEOA.  For example, an individual who believes that he or she was denied the right to compete for a vacancy under 5 U.S.C. § 3304(f) may pursue a claim under VEOA without alleging that the agency knowing violated one of statutes listed at 2302(e)(1).  See, e.g., Walker v. Department of the Army, 104 M.S.P.R. 96 (2006) (failure to allow competition of veterans’ preference candidate under 5 U.S.C. § 3304(f) violated VEOA despite 3304’s exclusion from 2302(e)(1)). 

May MSPB order corrective action based on a violation of 2302(b)(11)?

No.  Interestingly, along with 2302(b)(11), VEOA also added subsection 2302(e)(2), which states that:

Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11).  Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action). 

Therefore, unlike other PPPs, the Board may not order corrective action under 2302(b)(11).  Legislative history does not specifically address why Congress enacted subsection 2302(e)(2).  However, MSPB does have authority under VEOA and the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) to order relief where agencies have violated various veterans’ rights.  Therefore additional authority to do so under 2302(b)(11) might have been viewed as unnecessary or confusing.  The Board’s authority to order a VEOA remedy based upon a violation of 2302(b)(11) remains an open question.  See Villamarzo, 92 M.S.P.R. at 164 n. 2. 

May MSPB bring action against an employee who violates 2302(b)(11)?

No.  However, as with other PPPs, the Office of Special Counsel (OSC), under 5 U.S.C. § 1215(a)(1), may bring a disciplinary action against an employee for consideration by the Board.  Disciplinary action can include reprimand, reduction-in-grade, suspension, removal, debarment from Federal employment for up to 5 years, and a civil penalty not to exceed $1,000.  5 U.S.C. §1215(a)(3).

Is an inadvertent violation of veterans’ preference laws, rules, or regulations a PPP under 2302(b)(11)?

There is no case law on this question at present.  The key is the interpretation of “knowingly.”  The language of the statute could be read to mean that “knowingly” refers to taking, recommending, or approving, or failing to take, recommend, or approve a tainted personnel action, whether or not the offending employee actually knew about veterans’ preference laws, rules, and regulations.  Cf. Special Counsel v. Ware, 114 M.S.P.R. 128, ¶ 27 (2010) (OSC need not demonstrate an employee acted knowingly in disregard of work-place political activity prohibitions to warrant removal).  

However, the legislative history of 2302(b)(11) could be read to suggest that the use of the word “knowingly” in the subsection means that the PPP would be established only if a person were found to have knowingly “fail[ed] to comply with veterans’ preference requirements.”  S. Rep. No. 105-340, at 17 (1998). 

We must await future case law to know the answer to this question. 


1 For the purpose of 5 U.S.C. § 2302, the term “veterans' preference requirement” means any of the following provisions of law:

(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701. 
(B) Section 943(c)(2) and 1784(c) of title 10. 
(C) Section 1308(b) of Alaska National Interest Lands Conservation Act.
(D)  Section 301(c) of the Foreign Service Act of 1980. 
(E)  Section 106(f), 7281(e), and 7802(5) of title 38. 
(F)  Section 1005(a) of title 39. 
(G) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans' preference requirement for the purpose of this subsection. 
(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

2 5 U.S.C. § 2302(e)(1)See Villamarzo v. Environmental Protection Agency, 92 M.S.P.R. 159 (2002). 

Those who have “veterans’ preference” include veterans, spouses, widows, or mothers who meet the definition of “preference eligible” in 5 U.S.C. 2108.  Preference eligibles are entitled to have 5 or 10 points added to their earned score on a civil service examination (see 5 U.S.C. 3309).  They are also accorded a higher retention standing in the event of a reduction in force (see 5 U.S.C. 3502).  Preference does not apply, however, to in-service placement actions such as promotions.  5 C.F.R. § 211.102(c).  See Lynch v. Office of Personnel Management, 115 M.S.P.R. 480 (2011). 

Number 12: Violating Merit System Principles. Where is this PPP found in the law?

This final PPP is set forth in subsection 2302(b)(12) of Title 5 of the United States Code—the “title” referenced in the PPP.  It was one of the original PPPs set out in that section by the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111 (CSRA), but until 1998 it was found at section 2302(b)(11).  As a result of the Veterans Employment Opportunities Act of 1998, Public Law 105-339, §6, which added the current (b)(11) prohibiting the violation of a veterans’ preference requirement, it assumed the (b)(12) designation.

What does the legislative history of the provision indicate about the purpose of 5 U.S.C. § 2302(b)(12)?

When the bill that became the CSRA was introduced, it did not include a PPP that addressed the merit system principles, and the House of Representatives did not add one.  The Senate, however, did by adopting language stating that in addition to the enumerated PPPs, any other action that “violates any law, rule, or regulation implementing, or relating to, the merit system principles” also constitutes a PPP.  It stated that the provision was added “to make unlawful those actions which are inconsistent with the merit system principles, but which do not fall within” the other PPPs.  After explaining that such actions may lead to appropriate discipline, it stated that this PPP would occur, for example, “should a supervisor take action against an employee or applicant, without having proper regard for the individual’s privacy or constitutional rights.”  S. Rep. No. 95-969, 95th Cong., 2d Sess. 22-23 (1978).

In conference, the committee noted the difference between the House and Senate versions and adopted the latter, “modified so that the law, rule, or regulation must ‘directly concern’ a merit system principle in order to be actionable as a prohibited personnel practice.”  Thus, “[t]his provision would make unlawful the violation of a law, rule, or regulation implementing or directly concerning the merit system principles but which do[es] not fall within the first 10 categories of prohibited personnel practices.”  It also referenced the violation of an individual’s privacy or constitutional rights as matters that would be covered by this PPP.  Conference Report No. 95-1717, 95th Cong., 2d Sess. (1978).

May the Merit Systems Protection Board (MSPB or Board) review an employee’s claim of being subjected to a 5 U.S.C. § 2302(b)(12) PPP in all situations?

No.  As is true of most other PPPs, MSPB lacks the authority to consider an employee’s claim of an alleged violation under section 2302(b)(12) except when it is raised as an affirmative defense in a matter over which MSPB otherwise has appellate jurisdiction.  A claimed violation does not form an independent basis for MSPB to exercise its appellate jurisdiction.  See Merzweiler v. Office of Personnel Management, 100 M.S.P.R. 442, ¶ 8 (2005).

Are there other ways in which the Board may consider a claim under section 2302(b)(12)?

Yes.  In addition to corrective and disciplinary action complaints brought by the Special Counsel, 5 U.S.C. §§ 1214 and 1215, respectively, MSPB may also consider a claim that a rule or regulation issued by the Office of Personnel Management (OPM) requires or has required any employee to commit a PPP.  5 U.S.C. § 1204(f).  Many of the cases in which it is claimed that an employee has committed a PPP under section 2302(b)(12) involve MSPB’s regulation review authority.  In fact, the first Board decision to examine the meaning of the (b)(12) PPP was also the first to explore Board authority to review OPM regulations.  See Wells v. Harris, 1 M.S.P.R. 208 (1979).  There, the Board noted that most of the PPPs are defined by section 2302(b) with a degree of specificity and are derived from previously existing law or regulation, but that section 2302(b)(11) (as it was then numbered) is an exception.  Lacking such guidance, therefore, the Board relied on the wording of the provision to hold that a PPP is not established under this section merely by showing that an action violates the merit system principles.  Rather, it must be shown by a two-step analysis that the action (i) violates a law, rule, or regulation, and (ii) that the violated law, rule or regulation is one which “implements” or which “directly concerns” the merit system principles.  The Board then looked to the legislative history of the CSRA as a significant authority in determining whether the rule or regulation at issue violates a law that meets the requirement of “implementing” or “directly concerning” the merit systems principles.  That was particularly necessary, it found, because those terms were also not defined in the CSRA.

The issue to be decided in Wells was whether OPM regulations that provided for “unacceptable performance” actions against employees under 5 U.S.C. § 4303 for failure to meet performance standards which were not established as part of performance appraisal systems under 5 U.S.C. § 4302, violated the statutory requirement that such actions be taken only for “unacceptable performance” as defined by statute.  Pursuant to 5 U.S.C. § 4301(3), “unacceptable performance” is defined as “performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position.”  The Board concluded that the regulations violated section 4303 because any individually-targeted ad hoc procedure was exactly what the requirement for establishment of performance appraisal systems was designed to avoid.  The Board then looked to the next question posed by (then) section 2302(b)(11), i.e., whether section 4303 was a law implementing or directly concerning the merit system principles.  Although there were several merit system principles that might apply, the Board found that the most pertinent principle was section 2301(b)(6), providing that “... employees should be separated who cannot or will not improve their performance to meet required standards.”  Therefore, the Board concluded that violation of section 4303(a) through failure to base unacceptable performance decisions upon standards established as part of a section 4302 appraisal system constitutes a prohibited personnel practice under section 2302(b)(11) (1979).

It is interesting to note that Wells v. Harris was also the case that established the rule that applies to all of the analyses in the Board’s earlier series explaining the merit system principles, that the principles are “hortatory” and not “self-executing,” so that, unless a law, rule, or regulation implementing or directly concerning the principles is violated, the principles themselves may not be made the basis of a legal action by an employee or agency.

Has the Board considered 5 U.S.C. § 2302(b)(12) in other regulation review cases?

Yes, it has done so many times.  However, because of the limitations imposed by the statute and regulations allowing for regulation review, few such requests are granted.  See, for example, Vergara v. Office of Personnel Management, 104 M.S.P.R. 616 (2007).  There, the Board found that the appellant failed to prove that the OPM regulation that denies retirement service credit for time spent in an indefinite appointment causes the commission of the PPP at (b)(12) because the regulation violates 5 U.S.C. § 2301(b)(8)(A), which provides that employees should be protected against arbitrary action.  In doing so, the Board noted that its regulation at 5 C.F.R. § 1203.11 lists the specific information that each request for a regulation review must contain but that, if the PPP at issue is one prohibited by section 2302(b)(12), the request must include the following additional information:  (i) Identification of the law or regulation that allegedly would be or has been violated, and how it would be or has been violated; and (ii) Identification of the merit system principles at issue and an explanation of the way in which the law or regulation at issue implements or directly concerns those principles.  In the most recent example, National Treasury Employees Union v. Office of Personnel Management, 118 M.S.P.R. 83 (2012), the union asked the Board to review and invalidate the qualification standard for a specific position based on the allegation that its educational requirement violates 5 U.S.C. § 3308 and would cause an employee to commit a PPP under (b)(12) because the standard violates the merit system principle at 5 U.S.C. §§ 2301(b)(1) concerning recruitment, among others.  Although the Board ultimately denied review, it found these contentions constitute nonfrivolous allegations establishing a claim under 5 U.S.C. § 1204(f).

Are there any important appellate jurisdiction cases involving 5 U.S.C. § 2302(b)(12)?

Certainly.  One notable example is Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (en banc).  As is true of Wells v. Harris, discussed above, this case addressed the requirements for taking performance-based actions.  It arose from a Board ruling that agencies are required to follow the procedures of 5 U.S.C. Chapter 43 in order to take an action based on unacceptable performance and could not rely instead on the adverse action procedures at 5 U.S.C. Chapter 75.  As is true of the merit system principles and the PPPs, Chapter 43 was also created by the CSRA.  It directed the use of performance appraisals as the basis for actions both rewarding and removing employees, among other things.  5 U.S.C. § 4302(a)(3).   As the court noted, the Board feared that agencies might attempt to use Chapter 75 in place of Chapter 43 to avoid the merit principles embodied in Chapter 43, but the court found that agencies have “no escape route from merit principles” and ruled that performance-based actions may still be taken under Chapter 75.  In its analysis, the court stated that, under section 2302(b)(11) (now (12)), it is a PPP to violate the merit principles set out in section 2301(a).  Two merit principles in section 2301 are particularly relevant:  (6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards; and (7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.

Based on these authorities, the court held that, under 5 U.S.C. § 7701(c)(2)(B), which provides that an adverse action may not be sustained against an employee if the decision was based on a PPP, and 5 U.S.C. § 2302(b)(12), agencies do not avoid the merit principles of Chapter 43 by seeking to remove an employee under Chapter 75 because a violation of the merit principles is a specific, substantive defense to an adverse action.

What violations of 5 U.S.C. § 2302(b)(12) have the Board and the courts found?

These are a few examples of other situations that have been found to violate (b)(12).  In Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993), the Board found that two agency officials subverted the proper employment process by using Temporary Limited Appointment (TLA) authority to place in a position an individual who could not compete under the merit staffing announcement because she lacked competitive status and was not eligible for reinstatement or for consideration as a veteran or an individual with a disability.  Considering all the circumstances showing pre-selection, and because TLA authority is limited to temporary positions, but the position at issue was permanent, the Board agreed that the action violated the regulations concerning such authority.  Further, it violated the merit system principle at 5 U.S.C. § 2301(b)(1), that “[r]ecruitment should be from qualified individuals from appropriate sources.”  As a result, the Board found a PPP under the provision that is now (b)(12).  It imposed a $1,000 fine and debarment on one official, who had retired by that time, and a 60-day suspension against the second.

In Special Counsel v. Department of Housing & Urban Development, 111 M.S.P.R. 48 (2009), the Board granted and extended a stay requested by the Office of Special Counsel based on its allegation that an individual had not been appointed to a position because of his status as a Schedule C political appointee, which is a non-merit factor, and therefore that the agency had committed a (b)(12) PPP. 

Suzal v. Director, United States Information Agency, 32 F.3d 574 (D.C. Cir. 1994), involved a contract employee of Voice of America (VOA) radio who had been given permission to hold a second job.  He claimed that his contract with VOA had not been renewed because of his failure to submit certain articles he wrote in his other job for prepublication clearance by VOA, and that VOA’s alleged insistence that he do so violated the First Amendment.  The court held that “our cases make clear that it is a ‘prohibited personnel practice’ to refrain from reappointing or reinstating someone because he ignored unconstitutional restrictions on his freedom of speech,” citing earlier case law and 5 U.S.C. § 2302(b)(11), as it was then numbered.

National Treasury Employees Union v. Egger, 783 F.2d 1114 (D.C. Cir. 1986), addressed a claim that an agency had committed a PPP by reclassifying certain positions into another pay category (from Wage Grade to General Schedule).  The appellants asserted a violation of a 1966 law codified in title 5 of the United States Code, and the court held that the claim was cognizable by the Special Counsel under (b)(11) as it was then numbered.  “This statute implements merit system principles prohibiting ‘arbitrary action’ (Sec. 2301(b)(8)(A)), insuring ‘fair and equitable treatment in all aspects of personnel management’ (Sec. 2301(b)(2)) and providing ‘equal pay ... for work of equal value’ (Sec. 2301(b)(3)).  These merit system principles would trigger OSC's jurisdiction over appellants' claims.”

As all of these decisions show, a PPP may be found under section (b)(12) in a wide variety of situations involving actions both taken and withheld.  Indeed, one court referred to the provision as “the catch-all prohibition on personnel actions violating the CSRA’s merit system principles.”  Ferry v. Hayden, 954 F.2d 658, 651 (11th Cir. 1992).  In the same vein, in its August 2011 report entitled "Prohibited Personnel Practices: Employee Perceptions," when the Board examined section (b)(12), it noted that:

The commission of this PPP can overlap with any of the other PPPs because the PPPs as a whole tend to mirror the merit system principles [(MSP)], and this PPP covers violations of laws, rules, and regulations implementing merit system principles.  Thus, it would be difficult to violate a different PPP without violating an MSP, which in turn violates the 12th PPP if there is a law, rule, or regulation involved.  It is hard to picture a situation in which a personnel action could occur without touching upon some law, rule, or regulation involving the merit principles.

If an employee appeals an adverse action and claims that it was the result of a section 2302(b)(12) PPP, how is a violation proven?

First, it is the appellant who has the burden of proof on any PPP claim.  See 5 U.S.C. § 7701(c)(2)(B), 5 C.F.R. § 1201.56(a)(2)(iii).  As to the method of proof, it was only recently that the Board recognized that its case law had not previously established the precise elements for proving a violation of this section.  In Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161 (2012), the Board addressed the appellant’s claims that her removal was the result of two PPPs, 5 U.S.C. §§ 2302(b)(9) (certain types of reprisal) and (b)(12).  The Board first noted as to the (b)(9) claims that in a case where the agency has already articulated a non-retaliatory reason for its action, i.e., the charged misconduct, it has done everything that would be required of it if the appellant had made a prima facie case, so that the Board’s inquiry proceeds directly to the ultimate question of whether, weighing all the evidence, the appellant has met her burden of proving illegal retaliation.  It then adopted a similar method of analysis for (b)(12) claims.  Specifically, it held that “under the circumstances of this appeal, we find that it is appropriate to proceed directly to the ultimate question of whether, weighing all the evidence, the appellant has met her burden of proving that the agency’s removal action violated a law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. § 2301.”  Additionally, in Special Counsel v. Byrd,59 M.S.P.R. at 579, discussed above, the Board noted that unlike many of the other PPPs, there is no mention of motive in the text of (b)(12).  Thus, improper motive is not an element that must be proven to show a section (b)(12) PPP.  The elements for proving this PPP are: (1) a personnel action was taken; (2) the taking of this action violated a civil service law, rule or regulation; and (3) the law, rule or regulation violated implements or directly concerns a merit system principle.”  Id.