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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 13: Nondisclosure Forms, Policies & Agreements
	
	
  Prohibited Personnel Practice of the MonthAny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—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."***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)(13)?***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.


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