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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 5: Influencing Withdrawal from Competition


  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—
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.***Influencing  Withdrawal from Competition - Where can I find this provision?***
It was part of the Civil  Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.   Like the other prohibited personnel practices discussed in this series,  it is codified at 5  U.S.C. § 2302(b).
   ***What is the purpose of this provision?***It eliminates one way that individuals might otherwise try  to subvert the competitive process.  The  civil service system is based on the idea that employees should be selected  through fair and open competition.  5 U.S.C.  § 2301(b)(1).  When filing  vacancies in the competitive service through examination, selecting officials generally  must select one of the top three ranked candidates on a certificate.  5 C.F.R.  § 332.404.  If not for this  prohibited personnel practice, they might try to ensure that their preferred  candidates were among the top three, and thus eligible to be selected, by pressuring  higher-ranked candidates to withdraw their applications.
          ***What must be shown to establish a violation  of this provision?***
            There are two elements that both must be present for a person  to violate this provision.  First, the individual  must have influenced or attempted to influence a person to withdraw from  competition.  Attempting to influence is  enough even if the attempt does not succeed.   Second, the person must have done so with the intent to improve or injure  someone’s employment prospects.  *Special  Counsel v. Brown*, 61 M.S.P.R. 559, 565 (1994).
          ***In what kinds of situations does this  practice typically arise?***
            Violations often involve situations where an agency passed  over applicants who were entitled to priority—for example, veterans—without  following the proper procedures for doing so.   After the agency hired its preferred candidate, it realized that there  were other applicants who had priority.   In an effort to avoid having to terminate the candidate who was hired, an  individual may try to convince the applicants who have priority to withdraw  their applications.  This is a prohibited  personnel practice.  *See, e.g.*, *Filiberti  v. Merit Systems Protection Board*, 804 F.2d 1504 (9th Cir. 1986)  (veterans preference); *Brown*,  61 M.S.P.R. at 563 (priority under displaced-employee program).
          ***How do I pursue a claim that someone  violated this provision?***
            The Office of Special  Counsel (OSC) receives and investigates claims of prohibited personnel  practices, including this provision.  5 U.S.C.  § 1214(a)(1)(A).  If OSC  concludes that there has been a violation, it may request the Merit Systems  Protection Board (MSPB) to impose discipline against the violator.  *Id.* § 1215.  The case will be heard by an administrative  law judge, who will make an initial decision that can be appealed to the Board.  5 C.F.R.  § 1201.125.
            An individual employee also could, in theory, raise this  provision as an affirmative defense to an adverse action by an agency that is  within MSPB’s jurisdiction, such as a removal, but it is difficult to imagine  in practice how such a defense would arise.  5  U.S.C. § 7701(c)(2)(B).  Absent an  otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by  an individual (as opposed to OSC) that this provision has been violated.  *See Gaugh  v. Social Security Administration*, 87 M.S.P.R. 245, ¶ 7 (2000); *Wren  v. Department of the Army*, 2 M.S.P.R. 1, 2 (1980), *aff'd*, 681 F.2d  867, 871‐73 (D.C. Cir. 1982).
          ***What penalties may the Board impose for  violations of this provision?***
            The penalties the Board may impose include reprimanding,  suspending, demoting, or removing the offender from Federal employment;  prohibiting the offender from working for the Federal Government for up to 5  years; and imposing a fine of up to $1000.  5 U.S.C.  § 1215(a)(3).  Most reported  decisions have involved suspensions, fines, or both.  *See,  e.g.*, *Filiberti*,  804 F.2d at 1510-11 (60-day suspensions); *Brown*,  61 M.S.P.R. at 574 (90-day suspension for one offender and $1000 fine for the  other); *Special  Counsel v. Judson*, 43 M.S.P.R. 61 (1989) (30-day suspension); *Special  Counsel v. Heyel*, 35 M.S.P.R. 402 (1987) ($1000 fine); *Special  Counsel v. Ross*, 34 M.S.P.R. 197 (1987) (one- and two-grade demotions); *Special  Counsel v. Waddams*, 34 M.S.P.R. 84 (1987) (debarment from Federal  employment for three years plus fines of $750 and $500; for a third respondent,  fine of $350); *Special  Counsel v. Evans-Hamilton*, 29 M.S.P.R. 516 (1984) (30-day suspension); *Special  Counsel v. Verrot*, 18 M.S.P.R. 714 (1984) (60-day suspension plus $1000  fine).  Note that some of these cases  also involved other charges beyond influencing an applicant to withdraw.
          ***Has MSPB studied this practice?***
            Yes.  In its report *Prohibited  Personnel Practices: Employee Perceptions*, the Board reported that  perceived violations of this provision have decreased steadily in the last 15  years.  In 2010, only 2.2% of Federal  employees who responded to MSPB’s survey reported that they had been influenced  to withdraw from competition in the preceding two years, less than half as  often as such violations had been reported in 1996.  *Id.* at  30.
          ***Does this provision prohibit someone from  honestly advising an applicant that a job might not be the best fit for her?***
            No.  The provision  does not bar a person from counseling an applicant to withdraw for legitimate  reasons, because that counseling is not intended to injure the applicant’s  employment prospects (or improve another applicant’s prospects).  The provision is violated only when the person  acts with the *purpose* of injuring the  applicant’s prospects or improving another applicant’s prospects.  *Filiberti*,  804 F.2d at 1510.
          ***Are individuals safe from discipline if they  give only true information?***
            Not necessarily.   Even giving an applicant true information about the position may violate  this provision if it is done with the intent to improve or injure someone’s  employment prospects.  In *Filiberti*,  for example, agencyofficials told the applicant that his moving  expenses would not be paid, that the position required extensive travel at a  moment’s notice, that his military retirement pay might be reduced if he  accepted the position, that the cost of living in the San Francisco area was  high, and that it was uncertain what effect a pending merger between the agency  (a division of the Navy) and the Army might have on the position.  804 F.2d at 1507.  Even though all of this information may  have been true, a prohibited personnel practice occurred because the  officials gave information to the applicant for the purpose of dissuading him  from continuing with his application so that they could hire someone else.  *Id.* at 1510.
          ***Are there regulations on the same topic?***
    The Office of Personnel  Management has promulgated similar but broader regulations that are codified  at 5  C.F.R. §§ 4.3 and 330.1001.  The regulations apply to any employee or  applicant, and cover not only inducing others to withdraw but also  dissuading them from applying in the first place.  Applicants who violate the regulations will  have their applications cancelled and may be subject to other penalties.  5  C.F.R. § 330.1001.
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