Prohibited Personnel Practice 12: Violating Merit System Principles

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 any other personnel action if the taking or failure to take such action violates any law, rule, or regulation implementing or directly concerning, the merit systems principles contained in section 2301 of this title.

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:

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.