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U.S. Merit Systems Protection Board
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Home
	  Prohibited Personnel Practices
      Frequently Asked Questions
      1- Non-Discrimination
         2 - Proper Considerations
         3 - Coercing  Political Activity
               4 -  Obstructing the Right to Compete for Employment
               5 - Influencing  Withdrawal from Competition
               6 - Granting  Any Preference or Advantage Not Authorized by Law
               7 - Nepotism
                   8 - Whistleblower Protection
                   9 - Protection Against Retaliation
                   10 - Conduct Not Adversely Affecting Performance
                   11 - Violating Veterans' Preference
                   12 - Violating Merit System Principles
                   13 - Nondisclosure Forms, Policies & Agreements
					14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 4: Obstructing the Right to Compete for Employment

  Prohibited Personnel Practice of the Month

  Any employee who has authority to take, direct others to take, recommend, or   approve any personnel action, shall not, with respect to such authority—
  deceive or willfully obstruct   any person with respect to such person’s   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.
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