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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 12: Violating Merit System Principles
	
	
	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—
        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:
    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*.


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