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

1. discriminate for or against any employee or applicant for employment—
   
1. 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);
   
   
2. 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);
   
3. 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));
   
   
4. on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
   
   
5. on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;
   
   
2. 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—


1. an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or


2. an evaluation of the character, loyalty, or suitability of such individual;


3. 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;


4. deceive or willfully obstruct any person with respect to such person's right to compete for employment;


5. 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;


6. 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;


7. 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;


8. 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—


1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—


1. a violation of any law, rule, or regulation, or


2. 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


2. 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—


1. a violation of any law, rule, or regulation, or


2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
   
   
9. 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—


1. 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);


2. testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);


3. 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


4. for refusing to obey an order that would require the individual to violate a law, a rule or regulation;
   
   
10. 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;
    
    
11.  
1. knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or
   
   
2. knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement;
   
   
12. 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
    
    
13. 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."


14. 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).

1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
   
   
1. a violation of any law, rule, or regulation, or
   
   
2. 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.

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.