That’s the question, more or less, at the heart of an interesting debate between two merit board members in a case involving a criminal investigator agent removed for his subpoenaed testimony.
The U.S. Office of Special Counsel filed a complaint before the Merit Systems Protection Board to reverse the removal of Vincent Cefalu, a Criminal Investigator with the Department of Justice. The DOJ has accused him of lack of candor while testifying under subpoena during a criminal suppression hearing.
The OSC is claiming that the DOJ committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by violating Mr. Cefalu’s rights under the First Amendment to the U.S. Constitution via the removal. (Mr. Cefalu’s speech does not seem to implicate whistleblower protection in this opinion.)
The provision at issue, 5 U.S.C. § 2302(b)(12), states that it is a prohibited personnel practice for an agency to “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.”
To invoke 5 U.S.C. § 2302(b)(12), the relevant party needs to follow a two-step process: (1) finding that the personnel action violates a law, and (2) that the law implements or directly concerns a merit system principle.
The relevant merit system principle here is 5 U.S.C. § 2301(b)(2):
All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
Board precedent says that the merit system principles are not “self-executing,” i.e., that it is not the violation of the merit system principles themselves that gives rise to a prohibited personnel practice, but a law that “implements” or “directly concerns” such principles.
At issue in this case is whether the First Amendment is such a law.
That’s where the Board members diverged. Vice Chair Anne Wagner recused herself, and Chairman Susan Grundmann and Member Mark Robbins diverged, leaving no precedential opinion on the matter. Ms. Grundmann opined that the First Amendment is a “law” that “directly concerns” the merit system principles, whereas Mr. Robbins disagreed. Each opinion analyzed Board precedent.
A rather high-level point of contention was about the role of the Constitution’s protections and purpose as they relate to the federal civil service.
Mr. Robbins claimed that to “reduce the Constitution to the nature of a codified statute … for enforcement of a merit system principle as a prohibited personnel practice (PPP), demeans the true nature of our Constitution.”
“As the Preamble states, it was established ‘to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty[.]‘ Notably missing here is any mention of enforcing a merit system principle as a PPP,” he said.
Nevertheless, Mr. Robbins conceded the “close-call nature of the arguments presented by both the agency and OSC.”
For her part, Ms. Grundmann argued that “I simply disagree with my colleague that viewing the Constitution as ‘directly concerning’ not only the bedrock principles of equal treatment and fairness, but, specifically, the principle that the federal government administer its personnel system with due regard for the constitutional rights of its employees, diminishes the import of that document.”
Another point of dispute–one relevant to tenured federal employees and their attorneys–is whether future litigants may use the Constitution as an affirmative defense against discrimination or retaliation. Here, too, the authors diverged.
Mr. Robbins argued that “[t]he Board is potentially inviting every adverse action to be turned into a consideration and determination of an appellant’s constitutional rights, either by way of an OSC investigation, or as an affirmative defense raised in an appeal to the Board. Even a quick review of the Constitution raises some intriguing possibilities for creative constitutionally-based affirmative defenses.”
Ms. Grundmann contested this point, stating simply that she does not “see the ‘intriguing possibilities’ that would ensue from recognizing the Board’s statutory authority—whether in adjudicating chapter 75 affirmative defenses or remedying PPPs—to consider whether an agency action was taken in violation of an employee’s First Amendment rights.”
The case was remanded for further adjudication, leaving the precise question of the Constitution’s role in the federal civil service unresolved for now.