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

- discriminate for or against any employee or applicant for employment— 
 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);
 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
);
 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)
);
 on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 
(29 U.S.C. 791
); or 
 on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation; 

-  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— 
 an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or 
 an evaluation of the character, loyalty, or suitability of such individual; 

-  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; 
-  deceive or willfully obstruct any person with respect to such person's right to compete for employment;
-  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;
-  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; 
-  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; 
-  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—
any disclosure of information by an employee or applicant which the employee or applicant 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 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 
 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—
-  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 or safety;     

-  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—
 the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
            (i) with regard to remedying a violation     of paragraph (8); or
            (ii) other than with regard to remedying     a violation of paragraph (8);
 testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); 
 cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or 
 for  refusing to obey an order that would require the individual to violate a law, a rule or regulation; 

-  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;    
-    
 knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or 
 knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement; 

-  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    
-  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." 
-  access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).		  

----

**Frequently Asked Questions**
All nine merit system principles can now be read on MSPB's website
***What is the significance of the PPPs and where do they come from?***
5 U.S.C. § 2302
***How does MSPB enforce the prohibition against these personnel practices?***
The Office of Special Counsel
 5 U.S.C. §§ 1214
5 U.S.C. §§ 1214
5 U.S.C. § 1214
5 U.S.C. § 1215
***If I believe that I have been the victim of a PPP, may I bring an appeal to the MSPB myself?***
5 C.F.R. § 1201.3
5 U.S.C. § 2302
5 U.S.C. § 7701
5 C.F.R. § 1201.56
***If my agency has not taken an appealable action against me, may I still bring an appeal to MSPB?***
5 U.S.C. §§ 1221
5 U.S.C. § 2302
5 U.S.C. § 2302
5 U.S.C. § 1204
***What requirements apply to proving a PPP?***
5 U.S.C. § 2302
5 U.S.C. § 2302
***How can I find out more about PPPs?***
www.mspb.gov/studies/index.htm
**PROHIBITED PERSONNEL PRACTICE NUMBER 1: Non-Discrimination - *The first prohibited personnel practice seems to repeat what merit system  principle 2 says.  Is there a difference?***
5  U.S.C. § 2302
second merit system principle
merit system principles
***If I file an  appeal with the Merit Systems Protection Board (MSPB) and claim that I was discriminated  against, will MSPB hear my claim?***
Whistleblower Protection  Act
***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?***
5 U.S.C. § 2302(b)(1)
***If I want  to raise a claim of sex discrimination, what's the difference between raising  it under subsection A and subsection C?***
***Most of the  other kinds of discrimination are familiar, but what are marital status and political  affiliation discrimination?***
*Stokes  v. Federal Aviation Administration*
761  F.2d 682
*Mastriano  v. Federal Aviation Administration*
714  F.2d 1152
Pendleton Act of 1883
***What  about sexual orientation discrimination?   Is that the same as sex discrimination?***
*Bostock v. Clayton County, Georgia*
***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?***
*See*
www.EEOC.gov/federal/otherprotections.cfm
*See*
*See*
***With all of  those options available, how do I know where to file?***
*See*
5 U.S.C.  § 7702
section 2302
*see*
*See*
5 U.S.C. § 2302
5 U.S.C. § 7702
***It seems  like MSPB would receive a lot of cases alleging this prohibited practice.  Has it?***
***Has the  Board recently issued any significant decisions addressing issues of  discrimination?***
*Southerland v. Department of Defense*
*Bowman v. Department of Agriculture*
*Davis  v. Department of the Interior*
***Has the Board  studied discrimination in the Federal government?***
www.mspb.gov/studies/viewallstudies.htm
**PROHIBITED PERSONNEL PRACTICE NUMBER 2: Proper considerations in making  personnel decisions -  *What does this provision address?***
5 U.S.C. § 2302(b)
5 U.S.C. § 3303
***Will the Merit Systems Protection Board (MSPB or the Board) hear a claim  that the agency violated this provision?***
5 U.S.C. §  7701(c)(2)(B)
***Who has the burden of proving a claim under this section?***
***Does this provision mean that an agency cannot interview employees who  witness or are involved in an incident leading to discipline?***
U.S.  Court of Appeals for the Federal Circuit
***Does this mean that a management official cannot ask a  labor relations specialist for advice in taking a disciplinary action against  an employee?***
***Can an agency ask  for recommendations from a prior supervisor when an applicant applies for a  position or a promotion?***
***How does this  provision relate to the prohibition against ex parte communications?***
***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?***
**PROHIBITED  PERSONNEL PRACTICE NUMBER 3:  Coercing  political activity - *Where can I find this prohibition covered in the law?***
 2302(b)(3)  in title 5 of the United States Code
***Where  did this provision come from?***
The Pendleton  Act of 1883
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?***
5 U.S.C. Section 7701
Whistleblower Protection  Act
https://www.osc.gov
5 C.F.R. §315.806
***Who has the burden of proving a claim under this section?***
https://www.mspb.gov/appeals/appeals.htm
***Does political coercion  have to be extreme or perpetrated by a supervisor?***
***What penalties are possible for an employee who commits  this prohibited personnel practice?***
5 U.S.C. §§ 7324
7326
**PROHIBITED  PERSONNEL PRACTICE NUMBER 4: Obstructing the Right to Compete for Employment - *Where is this  prohibition covered in the law?***
2302(b)(4)
***What is the  purpose of the fourth prohibited personnel practice?***
The Pendleton Act of 1883
***What exactly  is prohibited?***
*Special Counsel v. Ross*
Office of Special  Counsel
Office  of Personnel Management
*Special  Counsel v. Hoban*
***What is the  MSPB's jurisdiction to review an alleged violation of § 2302(b)(4)?***
third  PPP
5 U.S.C.  § 7701
*See Finston v. Health Care  Financing Administration*
Whistleblower Protection  Act
www.osc.gov
***What type of  penalty is imposed when a §  2302(b)(4) violation is found by MSPB?***
5 U.S.C. § 1215
*Special Counsel v. Hoban*
*Douglas v. Veterans Administration*
*Special Counsel v. Ross*
*Hoban*
**PROHIBITED  PERSONNEL PRACTICE NUMBER 5: Influencing  Withdrawal from Competition - *Where can I find this provision?***
5  U.S.C. § 2302(b)
***What is the purpose of this provision?***
5 U.S.C.  § 2301(b)(1)
5 C.F.R.  § 332.404
***What must be shown to establish a violation  of this provision?***
*Special  Counsel v. Brown*
***In what kinds of situations does this  practice typically arise?***
*See, e.g.*
*Filiberti  v. Merit Systems Protection Board*
*Brown*
***How do I pursue a claim that someone  violated this provision?***
Office of Special  Counsel
5 U.S.C.  § 1214(a)(1)(A)
*Id.*
§ 1215
5  U.S.C. § 7701(c)(2)(B)
*See Gaugh  v. Social Security Administration*
*Wren  v. Department of the Army*
*aff'd*
***What penalties may the Board impose for  violations of this provision?***
5 U.S.C.  § 1215(a)(3)
*See,  e.g.*
*Filiberti*
*Brown*
*Special  Counsel v. Judson*
*Special  Counsel v. Heyel*
*Special  Counsel v. Ross*
*Special  Counsel v. Waddams*
*Special  Counsel v. Evans-Hamilton*
*Special  Counsel v. Verrot*
***Has MSPB studied this practice?***
*Prohibited  Personnel Practices: Employee Perceptions,*
*Id.*
***Does this provision prohibit someone from  honestly advising an applicant that a job might not be the best fit for her?***
*purpose*
*Filiberti*
***Are individuals safe from discipline if they  give only true information?***
*Filiberti*
*Id.*
***Are there regulations on the same topic?***
Office of Personnel  Management
5  C.F.R. §§ 4.3
330.1001
5  C.F.R. § 330.1001
**PROHIBITED PERSONNEL PRACTICE NUMBER 6: Granting  Any Preference or Advantage Not Authorized by Law -      *Where is this prohibition covered in the law?***
2302
***What is the  purpose of the sixth prohibited personnel practice?***
*See *
5  U.S.C. § 2301
*See *
5 U.S.C. § 2302
*See *
5  U.S.C. § 2108
***What  exactly is prohibited?***
5 U.S.C. §  2302
*See *
*Special Counsel v. Byrd,*
*aff'd*
*See Special Counsel v. Lee,*
*rev'd in part*
*Special  Counsel v. DeFord*
*See Lee, *
*¶*
*.*
2302
*See id.*
*See Avery v. Office of Personnel  Management*
***What is MSPB's  jurisdiction to review an alleged violation of 5 U.S.C. § 2302(b)(6)?***
**  **
2302
*See Davis v. Department of  Defense, *
Office of Special Counsel
2302
*See *
5 U.S.C. §§ 1214
www.osc.gov
***What type of  penalty is imposed when a section 2302(b)(6)  violation is found***
***?***
*See *
5 U.S.C. §1215
*See *
5 U.S.C. § 1215
*Douglas v. Veterans Administration,*
*See *
*Lee*
*Byrd,*
***Has the  Board recently issued any significant decisions addressing this PPP?***
*Special Counsel v. Lee,*
*rev'd in part*
2302
*Id.*
2302
*Id.*
*Id.*
*See id.*
*See Beatrez  v. Merit Systems Protection Board,*
2302
***Has MSPB studied this  practice?***
2302
***What other guidance is out  there concerning this PPP?***
Office of Personnel Management
*See  e.g., *
**PROHIBITED PERSONNEL PRACTICE NUMBER 7: Nepotism - **
***Where can I find the provision on nepotism?***
5 U.S.C. §  2302
5 U.S.C. § 3110
***What is the purpose of  this provision?***
***How does the issue of  prohibited nepotism arise in MSPB cases?***
5 U.S.C. §§  2302(b)(7)
3110
***How do I pursue a claim  that someone violated this provision?***
Office of Special Counsel
5 U.S.C.  § 1214(a)(1)(A)
§ 1215
5  U.S.C. § 7701(c)(2)(B)
***What penalties may MSPB impose  for violations of this provision?***
******
5 U.S.C.  § 1215(a)(3)
***Has MSPB studied this  practice?***
www.mspb.gov/studies
**PROHIBITED  PERSONNEL PRACTICE NUMBER 8:  Whistleblower Protection**
***Where  can I find this provision?***
5  U.S.C. § 2302
***What  is the eighth prohibited personnel practice?***
- any disclosure of information by an employee or applicant  which the employee or applicant 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 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.

Special Counsel
***What  is the purpose of the eighth prohibited personnel practice?***
*Schmittling  v. Department of Army*
***What is the difference between section 2302(b)(8) and  section 2302(b)(9)?***
5 U.S.C. § 2302
5 U.S.C. § 2302
*Serrao v. Merit Systems *
*Protection Board*
95  F.3d 1569
*Luecht v. Department of Navy*
*Mason v. Department of Homeland Security*
***How  can I raise an alleged violation of section 2302(b)(8) with MSPB?***
**otherwise appealable action**
**Individual Right of Action**
5 U.S.C. § 1221
***How  do I raise a section 2302(b)(8) claim in the context of an “otherwise  appealable" action?***
5  C.F.R. § 1201.56
5 U.S.C. § 7511
5 U.S.C. § 7513
*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?***
*prima facie*
5 U.S.C. § 1221
*Ryan v. Department of the Air Force*
*Prima facie*
*Preponderant  evidence*
5  C.F.R. § 1201.56
*protected disclosure*
5 U.S.C. § 2302
*Davis  v. Department of Defense*
*Contributing  factor*
5 C.F.R.  § 1209.4
*personnel action*
*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? ***
*prima facie*
5 U.S.C. § 1221
*Fellhoelter      v. Department of Agriculture*
568  F.3d 965
*Schnell  v. Department of the Army*
*Clear and convincing evidence*
5  C.F.R. § 1209.4
*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?***
*employee*
*former employee*
*applicant*
Office of Special Counsel
5 U.S.C. § 2302
*Yunus v. Department of Veterans Affairs*
242 F.3d  1367
*See also*
www.mspb.gov/appeals/whistleblower.htm
***How  do I exhaust my administrative remedies before OSC? ***
*Briley  v. National Archives & Records Administration*
236  F.3d 1373
*Ellison  v. Merit Systems Protection Board*
7  F.3d 1031
*Covarrubias v. Social Security Administration*
*See also*
www.mspb.gov/appeals/whistleblower.htm
***Are  there any time limits for filing a section 2302(b)(8) claim with MSPB?***
*otherwise appealable action*
5  C.F.R. § 1201.22
*IRA appeal*
5 U.S.C. § 1214
*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?***
*See Downing  v. Department of Labor*
*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?***
5 U.S.C. § 1221
***Are  there any recent decisions of note by the courts or MSPB that address this PPP?***
*Wadhwa  v. Department of Veterans Affairs*
*See, e.g.,  White v. Department of the Air Force*
*Chambers  v. Department of the Interior*
*see  also Chambers v. Department of the Interior*
***Has  MSPB studied this practice?***
*Blowing  the Whistle:  Barriers to Federal  Employees Making Disclosures*
*Other MSPB reports that discuss this *
*Whistleblower  Protections for Federal Employees*
*Prohibited  Personnel Practices: Employee Perceptions*
*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?***
5 U.S.C. § 2302
***What  is the ninth prohibited personnel practice?***
***What  is the purpose of the ninth prohibited personnel practice?***
Office of Special Counsel
*Matter of Frazier*
***How  do Federal employees show that they were retaliated against in violation of the  ninth PPP?***
*prima facie*
ection  2302(b)(9)
*Crump  v. Department of Veterans Affairs*
*Prima facie*
*prima facie*
*Gerlach v. Federal Trade Commission*
* Mt. Healthy City School District Board of  Education v. Doyle*
***What  is the difference between section 2302(b)(9) and section 2302(b)(8) (whistleblowing)?***
*Serrao v. Merit Systems *
*Protection Board*
*Luecht v. Department of Navy*
Whistleblower Protection  Act
*Mason v. Department of Homeland Security*
***May  I file a direct appeal to MSPB to remedy violations of section 2302(b)(9)?***
*See*
5 U.S.C. § 7512
*Booker v. U.S. Postal Service*
*aff'd*
*cert. denied*
*Wren v. Department of the Army*
*aff'd*
5 U.S.C. § 7701
5 U.S.C. § 2302
***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?***
OSC
*King v.  Jerome*
5 U.S.C. § 1214
*Harvey  v. Merit Systems Protection Board*
***What  penalties may MSPB impose for violations of this provision?***
5 U.S.C. § 1215
*ee Special Counsel v. Nielson*
*Douglas  v. Veterans Administration*
*Special Counsel v. Hathaway*
*aff'd*
***Does  the ninth PPP include retaliation for filing an EEO complaint?***
5 U.S.C. § 2302
5 U.S.C. §  2302(b)(1)
*See*
*Mahaffey  v. Department of Agriculture*
5 U.S.C. § 7121
***Are  compensatory damages available for violations of the ninth PPP?***
2302
*See Edwards v. U.S. Postal Service*
*Simonton v. U.S. Postal Service*
***Has  MSPB studied this practice?***
*Prohibited  Personnel Practices: Employee Perceptions*
**PROHIBITED PERSONNEL PRACTICE NUMBER 10:  Conduct Not Adversely Affecting Performance -**
***Where can I find this provision?***
5 U.S.C. §  2302(b)
***What is the purpose of this provision?***
5 U.S.C. §§ 2301(b)(2)
2302(b)(10)
2302(b)(10)
2302(b)(10)
Garrow v. Gramm
***What must be shown to establish a violation  of this provision?***
5 U.S.C. §  2302(b)(10)
2302(b)(10)
5 U.S.C. §  2302(b)(9)
***In what kinds of situations does this  practice typically arise?***
***How do I pursue a claim that someone violated  this provision?***
5 U.S.C. § 1214(a)(1)(A)
§ 1215
5 U.S.C. § 7701(c)(2)(B)
681 F.2d 867
***What penalties may the Board impose for  violations of this provision?***
5 U.S.C. § 1215(a)(3)
***Are there exceptions to this practice?***
5 C.F.R.  § 731.202
***Has MSPB studied this practice?***
*Prohibited Personnel Practices: Employee Perceptions*
**      PROHIBITED PERSONNEL PRACTICE NUMBER 11:**
**Violating Veterans' Preference **
1 

2
***Where  is this Prohibited Personnel Practice (PPP) found in the law?***
2302
Public Law  105-339
*Willingham v. Department  of the Navy,*
***What  is the purpose of 5 U.S.C. § 2302(b)(11)?***
S. Rep. No. 105-340
https://www.opm.gov/policy-data-oversight/veterans-services/vet-guide-for-hr-professionals/
https://www.dol.gov/agencies/vets
***What  is MSPB's jurisdiction to review an alleged violation of 5 U.S.C. §  2302(b)(11)?***
*See Davis v. Department of  Defense,*
***Does 2302(b)(11)  cover all “veterans' preference requirements"?***
5 U.S.C. § 3304
*Ramsey v. Office of Personnel Management, *
***Does a statute's  exclusion from 2302(e)(1) preclude a VEOA claim based on that statute?***
*See,  e.g., Walker v. Department of the Army, *
***May MSPB order  corrective action based on a violation of 2302(b)(11)?***
38 U.S.C.  §§ 4301
*See  Villamarzo, *
***May MSPB bring  action against an employee who violates 2302(b)(11)?***
***Is  an inadvertent violation of veterans' preference laws, rules, or regulations a  PPP under 2302(b)(11)?***
*Cf. Special  Counsel v. Ware,*

----

1
5  U.S.C. § 2302
| (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, *
5  U.S.C. 2108
5  U.S.C. 3309
5  U.S.C. 3502
*See Lynch  v. Office of Personnel Management, *
**PROHIBITED PERSONNEL PRACTICE NUMBER 12: Violating  Merit System Principles -*Where  is this PPP found in the law?***
2302(b)
Public Law  105-339
***What  does the legislative history of the provision indicate about the purpose of 5 U.S.C.  § 2302(b)(12)?***
merit system  principles
***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?***
*See Merzweiler v. Office of Personnel Management*
***Are there other  ways in which the Board may consider a claim under section 2302(b)(12)?***
1214
1215
Office  of Personnel Management (OPM)
5 U.S.C. § 1204
*See  Wells v. Harris*
*Wells*
5 U.S.C. § 4303
5 U.S.C. § 4302
5 U.S.C. § 4301
2301
*Wells  v. Harris*
***Has  the Board considered 5 U.S.C. § 2302(b)(12) in other regulation review  cases?***
*Vergara v. Office of Personnel Management*
5 U.S.C. § 2301
5 C.F.R. § 1203.11
*National Treasury Employees  Union v. Office of Personnel Management*
5  U.S.C. § 3308
5 U.S.C. § 1204
***Are there any important appellate jurisdiction cases involving 5  U.S.C. § 2302(b)(12)?***
*Lovshin v. Department of the  Navy*
*en banc*
*Wells v. Harris*
5 U.S.C. Chapter  43
5 U.S.C. § 4302
5 U.S.C. § 7701
***What violations  of 5 U.S.C. § 2302(b)(12) have the Board and the courts found?***
*Special  Counsel v. Byrd*
*Special Counsel v. Department of Housing & Urban Development*
Office  of Special Counsel
*Suzal  v. Director, United States Information Agency*
*National Treasury Employees Union v. Egger*
*Ferry v. Hayden*
*Prohibited  Personnel Practices: Employee Perceptions*
| 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. |
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***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*.  

**PROHIBITED PERSONNEL PRACTICE NUMBER 13: Nondisclosure Forms, Policies and Agreements** - ***What  is the source of this PPP?***        Unlike  most of the first 12 PPPs which came from the Civil Service Reform Act of 1979,  the 13th PPP was added to the law by section 104 of the  Whistleblower Protection Enhancement Act of 2012 (WPEA), Public Law  112-199,  126 Stat. 1465 (November 27, 2012).   Although the WPEA itself does not contain a  statement of its purpose, in considering the bills that eventually became law,  both the Senate and the House of Representatives made it clear that the purpose  of the law was to strengthen protections for whistleblowers because encouraging  them to expose waste, fraud, and abuse can save money for the government and  American taxpayers.

***When did the 13th  PPP become effective?***        Section  202 of the WPEA provides that its terms “shall take effect 30 days after the  date of enactment of this Act.”  Because  the bill was signed into law on November 27, 2012, it is clear that the 13th  PPP has been effective since December 27, 2012.   However, there is a question about whether the WPEA should be applied  retroactively, meaning whether it should apply to appeals pending before the  Board and the U.S. Court of Appeals for the Federal Circuit on December 27,  2012, no matter when the personnel action on which the claim is based occurred,  or only to personnel actions and prohibited conduct that occurred on or after  that date.  In a notice published in the  Federal Register, 78 F.R. 9431 (February 8,  2013), the Board gave the public an opportunity to provide briefing on the  issue, called *amicus curiae* (“friends  of the court”) briefs.  The Board is now considering  the matter.

*** ******What  does the legislative history of the provision indicate about the purpose of 5 U.S.C.  § 2302(b)(13)?***        Both the Senate and the House of Representatives, following  their consideration of the bills that became the WPEA, issued reports on the  legislation’s provisions and purposes.  The  House Report, H. R. Rep. 112-508, 112th Cong.,  2d Sess. 7  (May 30, 2012), simply points  out that the bill “[i]ncludes as a prohibited personnel practice the  implementation or enforcement of any agency nondisclosure policy, form, or  agreement that does not contain a specific statement clarifying that its  provisions are consistent with and cannot supersede requirements that preserve  the right of Federal employees to make disclosures of illegality, waste, fraud,  abuse, or public health or safety threats.”

The Senate Report, S. Rep. No. 112-155, 112th Cong.,  2d Sess. 42 (April 19, 2012), notes that section 104 of the bill then under  consideration makes it a PPP for an agency to implement or enforce any  nondisclosure policy, form, or agreement that fails to contain the language it  specifies, “preserving employee obligations, rights, and liabilities created by  existing statute or Executive Order relating to disclosure of  information.”  The Report notes that the  bill requires “a general cross reference to the employee rights and obligations  under existing statute and Executive Orders” rather than a “specific list of  statutes and Executive Orders.”  In  addition, in its discussion of section 115 of the bill (see below) it notes  that agencies must post this language on their website along with a list of  controlling Executive Orders and statutory provisions.  As is apparent from the statutory language  quoted above, section 2302(b)(13) does not include a requirement for posting of  any language on agency websites.  Rather,  this requirement appears as a “Note” to section 2302.

***Are  there other provisions in the WPEA that contain nondisclosure requirements?***        Yes.  The  Senate Report, at 16-17, refers to section 115 of the bill, which repeats the  requirement that nondisclosure policies, forms, and agreements contain the same  notice to employees concerning their rights.   The Report notes that a similar limitation, referred to as an “anti-gag  provision,” had been included in appropriations language since 1988 that would  have prohibited agencies from using appropriated funds to implement or enforce  agency nondisclosure policies or agreements unless they contained an express  statement that the restrictions on disclosure “do not override [employees’]  rights to disclose waste, fraud, and abuse under the [Whistleblower Protection  Act], to communicate with Congress under the Lloyd-LaFollette Act, and to make  appropriate disclosures under other particular laws specified in the  statement.”  It then states that, in  section 115 of its bill, the Senate “would institutionalize the anti-gag  provision by codifying it and making it enforceable.”  The provision is intended to “alert employees  that the nondisclosure policy, form, or agreement does not override employee  rights and obligations created by existing statute or Executive Order relating  to classified information, communications with Congress, the reporting of  violations to an inspector general (IG), or whistleblower protection.”  Unlike the earlier anti-gag provision,  however, rather than include a specific list of the statutes and Executive  Orders that provide these rights, the bill “instead requires that each policy,  form, or agreement must state a general cross-reference to the employee rights  and obligations under existing statute and Executive Order relating to the  topics specified in section 115 of the legislation.”  The Report further states that agencies with such  policies, forms, or agreements must post the same language on their website.  The requirements of section 115 all appear in  a “Note” to 5 U.S.C. § 2302, not as a separate  section of the U.S. Code.

Finally, along these same lines, Congress added a  new “personnel action” to the list in 5 U.S.C. § 2302(a) of personnel  actions that cannot be taken for any of the 13 reasons prohibited by 5 U.S.C.  § 2302(b).  That new personnel  action is “the  implementation or enforcement of any nondisclosure policy, form, or agreement.” 

Thus, several provisions of the law appear to be  intended to assure that agencies do not enforce any nondisclosure policy, form,  or agreement that would be contrary to employees’ rights under statute and  Executive Order to “blow the whistle” on waste, fraud, and abuse, or to  otherwise properly communicate their concerns about Government actions  consistent with such authorities.  These  provisions therefore serve the purpose of the WPEA stated above.

***Does  the law specify any exceptions?***        The Senate Report states that it would not be a PPP  to continue to enforce a nondisclosure policy, form, or agreement that was in  effect prior to the passage of the law, even if it does not contain the  statement that is otherwise required, if the agency gives actual notice to any  employees who would be covered by the policy, form, or agreement.  Similarly, it would not be a PPP to enforce a  nondisclosure policy, form, or agreement against former employees as long as  the agency makes the required posting on its website.  The statute, 5 U.S.C. § 2302(b)(13),  does not specifically reference these exceptions, but they too now appear in  the “Note” to that section.

The Board has not yet had an opportunity to address  the status of such exceptions in light of their placement in a “Note” rather  than in the text of section 2302(b).

***May  the MSPB review an employee’s claim of being subjected to a 5 U.S.C. §  2302(b)(13) PPP in all situations?***        No.  As is true of most other PPP’s, the MSPB  lacks the authority to consider an employee’s claim of an alleged violation under  § 2302(b)(13) except when it is raised as an affirmative defense in a  matter over which the MSPB otherwise has appellate jurisdiction.  The Board has long held that a claim of a PPP  (other than one under section 2302(b)(8) and now under portions of (b)(9)),  does not form an independent basis for MSPB to exercise its appellate  jurisdiction.  *See In re Wren*, 2 M.S.P.R. 1, 2 (1980).   Of course, the Special Counsel can bring a  complaint for corrective and disciplinary action when she believes that any PPP  has been committed.  Such actions are  brought under 5 U.S.C. §§ 1214 and 1215, respectively.

***Are there any Board decisions involving 5 U.S.C.  § 2302(b)(12)?***        No.  The WPEA is simply too recent for this new  PPP to have been interpreted in any Board decision.   In  time, of course, we anticipate that the Board will issue precedential decisions  defining the provision.  One issue that  may arise in the near future involves the Board’s support for parties settling  their appeals without the need for an imposed decision.  Other adjudicatory bodies, both  administrative and judicial, and processes such as grievances and arbitrations,  generally share the Board’s view that settlement is generally preferable to  litigation.  Thus, it seems likely that  the Board will be faced with a case that requires it to determine whether an  agency’s attempt to enforce a settlement agreement reached on appeal that contains  a nondisclosure provision but no statement of the employee’s rights is covered  by 5 U.S.C. § 2302(b)(13).

*** ******Prior  to the WPEA, did the Board decide many cases involving nondisclosure  agreements?***        No.  Given the emphasis Congress put on  nondisclosure agreements in the WPEA, it is perhaps surprising to find that the  only decisions of the Board that referred to a “nondisclosure agreement” have  been of two types.  Most often, they are  appeals involving settlement agreements in which the parties agreed not to  disclose the terms of their settlement, but in none of them was there an  allegation that the agreement was an attempt to prevent the appellant’s  whistleblowing activity.  The other type  of decision has simply mentioned that Executive Order  12,968 requires that, for an employee to gain access to national security information,  he or she must meet certain criteria, including the signing of a nondisclosure  agreement.  *See, e.g., Conyers v. Department of Defense*, 115 M.S.P.R. 572 (2010), reversed  and remanded by *Berry v. Conyers and  Northover*, 692 F.3d 1223 (Fed. Cir.  2012); decision vacated by *Berry v.  Conyers and Northover*,No. 2011-3207 (Fed. Cir.  January 24, 2013).  None of the several  Federal Circuit decisions that reference that term concern cases that arose  from the MSPB.  In fact, it does not  appear that there have been any precedential decisions by the Board or the  Federal Circuit in which an employee claimed that he or she was stopped from  blowing the whistle on an improper agency practice because of a nondisclosure  policy, form, or agreement.  Thus, if  such cases should come to the Board in light of the WPEA, its decisions will be  written on a clean slate.

**PROHIBITED PERSONNEL PRACTICE NUMBER 14: Accessing Medical Records** -  ***Where  can I find provision Number 14?***As is true of all of the other prohibited personnel practices (PPPs), this one  can be found at 5 U.S.C. § 2302, specifically § 2302(b)(14). 

***What does the 14th PPP  prohibit?***        All PPPs begin with a statement that “[a]ny employee who has authority to take,  direct others to take, recommend or approve any personnel action, shall not,  with respect to such authority ....”   The 14th then specifically makes it a PPP for such an employee to  “access the medical record of another employee or an applicant for employment,  as part of, or otherwise in furtherance of, any conduct described in paragraphs  (1) through (13).” 

***Most of the other PPPs were  part of the Civil Service Reform Act of 1978.   Was this one?***        No.  The 14th PPP was set out in section 103  of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235  (October 26, 2017).           
***Who was Dr. Chris  Kirkpatrick and why is the law named after him?***        Dr. Kirkpatrick was a clinical psychologist at a Veterans Administration  medical center in Wisconsin.  He had complained  about the over-prescription of opiates to patients receiving care at the center,  which he alleged made it difficult for him to treat them, and about other  issues, and was later fired for reasons he considered false and in retaliation  for his whistleblowing.  As a  probationary employee, he did not have substantive appeal rights to MSPB  from his termination (although if he had sought relief from the Office of  Special Counsel (OSC), he could then have come to the Board with an individual  right of action (IRA) appeal based on his whistleblowing).  He committed suicide very soon after being terminated.  The bill that  ultimately became this Act was introduced by a Senator from Wisconsin in his  memory, partly to fulfill what was said to be his wish that others in his  position be protected from retaliation.   In addition to creating the 14th PPP, the law also increased  protection for whistleblowers by requiring that an agency head propose  discipline against a supervisor who is found to have retaliated against a whistleblower,  that the agency head give priority to a request for transfer made by an  employee on whose behalf the MSPB has granted a stay, and that the Comptroller  General of the United States submit to Congress a study of retaliation  against probationary employees.           
***Given its origin,  is the prohibition limited to employees at the Department of Veterans Affairs?***        No.  The statute contains two  “titles.”  Title I applies to “Employees  Generally” and Title II applies to “Department of Veterans Affairs  Employees” specifically.  The new PPP is  part of Title I.  Further, although  the events that eventually led to this law’s enactment took place at that  agency, the placement of the prohibition at 5 U.S.C. § 2302 makes it  applicable to every agency and employee covered by that section.  While the Department of Veterans Affairs (DVA)  has access to more medical records than most agencies because of its mission regarding  veterans for whose treatment it is responsible, the prohibition concerns  accessing the medical records of employees and applicants for employment, not  patients.  Agencies that do not have  a medical function as part of their mission have access to medical records of  employees and others as part of their personnel records when such employees occupy  positions with medical requirements or have requested reasonable  accommodations, leave under the Family and Medical Leave Act of 1993, or sick  leave, or for other reasons.  Thus, the  proscription extends far beyond the DVA to all agencies covered by 5 U.S.C. § 2302.           
***So, if a  supervisor accesses my medical records is that a PPP?  What about if he then tells someone else what  those records say?***Accessing  medical records may be done for proper purposes, so it is not a PPP simply  to access such records.  Even disclosing  to another individual the contents of those medical records may not  constitute the commission of the 14th PPP.   The prohibition is that a person with the requisite authority may not  “access the medical record of another employee or an applicant for employment,  as part of, or otherwise in furtherance of, any conduct” that constitutes  another PPP.  Thus, not only must the  authority access the medical record of an employee or applicant, but he or she  must also do so in connection with the commission of another PPP.            
***Is there Board or  court case law on what situations constitute the 14th PPP?  What actions might constitute such a violation?***The  provision became effective at the end of October of 2017, and has not yet  been tested before the MSPB.  Because the  Board is prohibited by law from issuing advisory opinions, 5 U.S.C. § 1204(h), we cannot state with  certainty what situations may give rise to the finding of the 14th PPP.  However, it would not be difficult to  envision a situation in which an agency official accesses an applicant’s medical  records to “willfully obstruct” the applicant’s right to compete for employment  (PPP 4).  It is also possible to envision  a situation in which a supervisor or other agency official accesses an  employee’s medical records to deny him a promotion or other job-related  advantage based on the information in that record, even though the employee can  safely and competently perform the job.   Such actions might be found to constitute disability discrimination (PPP 1).  It is likely that as time goes on, there will  be situations in which the MSPB and the courts may find—or reject—claims that  various supervisory or managerial actions constitute the 14th PPP.

***Has accessing  medical records been a punishable offense in Board law until now, even in the  absence of a PPP?***        Yes.  The Board has frequently recognized  the confidentiality of medical records and the seriousness of unauthorized  access to them.  For example, in *Smith v. Department of Veterans Affairs*, 93 M.S.P.R.  424 (2003), the Board held that it was a  reasonable punishment to remove an employee for disclosing sensitive and confidential  information about a veteran who was a patient and worked at the facility where  the employee worked.  In *Hall v. Department of Veterans Affairs*, 67 M.S.P.R. 622 (1995), the Board pointed out that 38 U.S.C. § 7332 prohibits disclosing information about certain medical  conditions on the agency's own initiative except  as authorized by the statute.  Due to the  sensitivity of such information, it may be disclosed only if “authorized by an  appropriate order of a court of competent jurisdiction granted after  application showing good cause therefor.”   Relatedly, as noted in *Doe v.  Pension Benefit Guaranty Corporation*, 117 M.S.P.R. 579 (2012), government‐wide regulations at 5 C.F.R.  § 339.301(b) ‐ (d), limit agencies’  authority to order medical examinations to three situations:  (1) An individual has applied for or occupies  a position which has medical standards or physical requirements or which is  part of an established medical evaluation program; (2) an employee has applied  for or is receiving continuation of pay or compensation as a result of an  on-the-job injury or disease; or (3) an employee is released from his or her  competitive level in a reduction in force and the position to which the  employee has reassignment rights has medical standards or specific physical  requirements which are different from those required in the employee's current  position.  Thus, even absent a PPP  addressing access to medical records, the Board’s cases and laws and  regulations have recognized the serious concerns that employees and others have  in maintaining the confidentiality of their medical records and health‐related information.         
***May I bring a  claim that my agency committed the 14th PPP directly to the MSPB?***        Only in certain circumstances.  That is,  if you have been removed, demoted, suspended for more than 14 days, or  been the subject of any other personnel action which is appealable to the  Board, you may claim that the agency violated the 14th PPP when it took  the action against you.  In such a case,  the agency would have the burden of proving the factual basis for the charge  against you (in an adverse action) or the propriety of denying the benefit you  are seeking (such as restoration to duty after military service or time on  workers’ compensation, etc.), but you would then have the burden of proving by  a preponderance of the evidence that the real reason for the agency’s action  constitutes this PPP.  Exceptions to this  rule are appeals under the Veterans Employment  Opportunities Act of 1998,  the Uniformed  Services Employment and Reemployment Rights Act of 1994, and the Whistleblower  Protection Acts, wherein you may not claim discrimination, whistleblowing,  or that the agency committed a PPP.  If  the personnel action that you believe constitutes PPP 14 is not appealable  to the Board, you may file a complaint with the OSC to determine whether OSC  will seek to persuade the agency that the action should be reversed, or will help  you by prosecuting the case for you before the MSPB.  If OSC does not prosecute the case for you,  you may not then file an IRA appeal with the Board.  In addition, of course, an agency may take an  appealable action against an employee for committing the 14th PPP.        
***If I bring an  action before the MSPB and am not satisfied with the result, can I seek  review elsewhere?***        Yes.  Board decisions are appealable to  the U.S. Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. § 7703(a)(1), (b)(1).  In addition, if you claim prohibited discrimination  under 5 U.S.C. § 2302(b)(1), you may seek review in  a U.S. District Court and then the U.S. Court of Appeals for the numbered  Circuit in which the district court is located.   In a very limited number of cases, *certiorari* may be granted by the U.S. Supreme Court following the decision of one of the  Circuit Courts of Appeals.  Return to top-  About MSPB 
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