Can the U.S. Constitution Protect Against a Retaliatory Termination?

First Amendment of the U.S. Constitution | By dbking, via Wikimedia Commons

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.

DownloadSpecial Counsel ex rel. Cefalu v. Dep’t of Justice (Sept. 8, 2014)

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A Month in Merit Protection: Recapping Civil Service News for July 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Lady Justice | Source: ChvhLR10, via Wikimedia Commons

Notable Decisions and Rulings

  • Under the procedural due process analysis, the Board will flexibly weigh the cost of additional agency procedures to guard against the risk of erroneous deprivation of an appellant’s private interests. In a furlough action, the risk of erroneous deprivation of 6 days of work does not warrant presenting a response to the furlough action outside of established mechanisms used to process thousands of cases. Vice Chair Wagner dissented. Gajdos v. Dep’t of the Army, 2014 MSPB 55 (July 22, 2014)
  • Citing to requirements in the Whistleblower Protection Enhancement Act, the Board held that when an appellant makes a protected disclosure in the normal course of her duties, 5 U.S.C. 2302 now requires her to prove that the personnel action was taken in retaliation for the disclosure – i.e. with an improper motive, rather than within a close period of time that implies retaliation. Benton-Flores v. Dep’t of Defense, 2014 MSPB 60 (July 31, 2014)

Reports, Studies, and Newsletters

Other Items of Note

  • Special Counsel Lerner appeared with Deputy Special Counsel Eric Bachman before the House VA Committee’s hearing on “VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability.” (July 8, 2014)
  • OSC issued a press release announcing that it obtained disciplinary action in two Hatch Act cases. (July 10, 2014)
  • Special Counsel Lerner appeared with Hatch Act Unit Chief Ana Galindo-Marrone before the House Oversight Committee’s hearing on “White House Office of Political Affairs: Is Supporting Candidates and Campaign Fund-Raising an Appropriate Use of a Government Office?”(July 16, 2014)
  • The House Science Committee issued a scathing letter to Commerce Department Inspector General Todd J. Zinser concerning the continued employment of his deputies who were found to have retaliated against DOC IG staffers. The deputies were removed the following month. (July 16, 2014)

MSPB to Issue New Rules to Comply with Compressed VA SES Due Process Schedule

US-DeptOfVeteransAffairs-Seal.svgThe U.S. Merit Systems Protection Board is in the process of issuing an Interim Final Rule* to address the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014, which mandated a new, compressed “due process” mechanism for disciplined VA senior executives.

The rules will create a new Part 1210 in Title 5 of the Code of Federal Regulations. The new rules include:

  • The provisions in Part 1210 apply only to removals or transfers effected under the new law. This authority is in addition to traditional adverse action authority under Title 38 or Chapter 75 of Title 5.
  • An MSPB Administrative Judge must issue a decision within 21 days after an appeal is filed, or else the VA Secretary’s decision is automatically upheld.
  • There are no appeal rights to the three-member Board.
  • The following mechanisms or devices are not allowed: case suspensions, class appeals, dismissals without prejudice, interlocutory appeals, petitions for review, procedures for original jurisdiction cases, stay requests.
  • An Administrative Judge may waive any MSPB rule to meet the expedited review of an appeal.
  • Parties must use the MSPB’s e-Appeal Online system.
  • An appeal must be filed no later than 7 days after the effective date of the removal or transfer.
  • The Agency’s response (response file or Agency file) must be filed within 3 days after the appeal is filed.
  • The initial status conference will take place within a week after the appeal is filed.
  • The parties have an obligation to make initial disclosures, which must be served before the initial status conference.
  • Responses to discovery requests must be made no later than 3 days after the initial status conference.
  • Motions to compel discovery must be filed no later than 5 days after the initial status conference.
  • The permitted discovery devices are interrogatories, requests for production/inspection/copying of documents, and requests for admissions.
  • Depositions are not allowed.
  • Interrogatories are limited to 10, including all discrete subparts.
  • The parties may engage in only one round of discovery.
  • All non-discovery motions must be filed no later than 5 days after the initial status conference.
  • Objections to motions must be filed no later than 2 days after the motion is filed.
  • The VA has a duty to assist the Administrative Judge as necessary to meet deadlines.
  • Amici curiae and intervenors are allowed to participate.
  • A hearing will generally take place no later than 18 days after the appeal is filed.
  • The hearing will be limited to no more than 1 day. Longer hearings may take place subject to the Administrative Judge’s discretion.
  • The MSPB will provide a court reporter.
  • The VA is required to meet its burden of proof of misconduct or poor performance by a preponderance of the evidence.
  • Proof of misconduct or poor performance shall create a presumption that the Secretary’s decision to remove or transfer the appellant was warranted.
  • The appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case.
  • If the agency has obstructed the appeal from being adjudicated in a timely fashion, the administrative judge may impose sanctions, up to and including the drawing of adverse inferences or reversing the removal action.
  • Appellants have the burden of proof, by a preponderance of the evidence, concerning: jurisdiction, timeliness, and affirmative defenses.
  • The available affirmative defenses are harmful error, prohibited personnel practices, or that the determination is not otherwise in accordance with the law.
  • If an appellant successfully rebuts the presumption that the penalty was warranted by establishing that the imposed penalty was unreasonable under the circumstances of the case, the action will be reversed. However, the Administrative Judge may not mitigate the Secretary’s decision to remove or transfer the appellant.
  • Bench decisions are permissible.
  • A decision by the Administrative Judge is nonprecedential.
  • Petitions for enforcement and motions for attorney’s fees and damages are permissible and may take place after the 21-day period expires.

*An Interim Final Rule allows the rules to go into effect immediately, subject to any comments the Board might receive.

Following Congressional Call for Accountability, Commerce IG Places Two Deputies On Leave

500px-US-DeptOfCommerce-Seal.svgPer The Washington Post, Commerce Department Inspector General Todd Zinser has placed two deputies on leave yesterday following criticism by a congressional committee and an investigation by the Office of Special Counsel finding that the deputies “allegedly threatened subordinates with negative performance reviews if they did not sign gag agreements before moving to new jobs.” The Post also reported that

Two individuals with knowledge of the removals have confirmed the actions by the inspector general’s office. One said the employees were placed on administrative leave Wednesday. The other source said they were escorted from the building and prohibited from physical and electronic access to the department.

Past coverage of this episode can be found here.

Litigation Tip for Whistleblowers and Appellants: Making Sense of Discovery Deadlines

Here is a quick and dirty rundown of 5 C.F.R. 1201.73, the MSPB’s regulation on discovery timelines. As always, this is for general informational purposes only – make sure to study the discovery regulations for yourself as laws change. Additionally, the judge may issue an order that supersedes or conflicts with the schedule below.


*Appellant files appeal

*Acknowledgement Order issued

*AO+20: Agency deadline to file Agency File [5 C.F.R. 1201.22]

*AO+30: Deadline for initial requests to be served on party. State time to respond in request – 20 days

*Discovery Request+20: Deadline for responding party to submit response [provides info, agrees to make depondent available (deposition may be later), or states objection] [AO+50]

*Response+10: Deadline for subsequent discovery request that’s related to previous request [AO+60]

*Response+10: Deadline to file motion for order to compel or issue subpoena [following good-faith narrowing discussion; motion must include copy of original request and statement showing info is discoverable, copy of good faith discussion, and copy of response to request or statement+affidavit that none has been received] [AO+60] [Note that "Response" may arrive before AO+50, and therefore "Response+10" deadline might occur before AO+60]

*Motion+10: Deadline to file opposition to motion to compel/subpoena [AO+70]

*Judge issues Order: compelled party has 20 days to respond. See “Discovery Request+20″ for next steps

Note: the Board defines “day” as calendar day. See 5 C.F.R. 1201.4(h). Also of note is 5 C.F.R. 1201.23, which governs what happens when a deadline falls on a weekend or federal holiday.

A Month in Merit Protection: Recapping Civil Service News for June 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Notable Decisions and Rulings

  • The Board recognized a change in the Whistleblower Protection Enhancement Act that applied a “substantial evidence” standard of proof, rather than “irrefragable proof,” to rebut any presumption that “public officers and employees perform their duties in good faith and in accordance with the law and governing regulations.” Shannon v. Dep’t of Veterans Affairs, 2014 MSPB 41 (June 5, 2014)
  • In a VEOA case, 5 U.S.C. 3304(f)(1) provides a preference eligible or veteran a right to compete for a vacant position–including a temporary one–and not just a permanent, competitive service position. Modeste v. Dep’t of Veterans Affairs, 2014 MSPB 44 (June 19, 2014)

Reports, Studies, and Newsletters

  • OSC submitted its Annual Report to Congress for FY 2013. (June 2014)
  • MSPB’s Office of Policy and Evaluation published Issues of Merit Spring 2014, covering the following topics: “Sexual Orientation; Looking for Guidance After the FPM; Supervisors and Favoritism; Agency’s Whistleblowing Cultures; Key Competencies; Trait-based abilities.” (June 10, 2014)

Other Items of Note

  • OSC issued a press release describing its ongoing investigation of 37 claims of whistleblower reprisal at the VA. (June 5, 2014)
  • MSPB Watch challenged the Board’s change in its FOIA policy of referring requests for docket filings to the originating agencies. (June 8, 2014)
  • Taking a cue from the Board’s efforts to undermine the WPEA, an administrative judge in New York applied the troublesome decision in O’Donnell v. USDA to find that an employee’s disclosure of an allegedly improper training directive, which had nothing to do with any form of adjudication, was not protected because the disclosure could have been “corrected through the appeals process.” (June 10, 2014)
  • MSPB published a notice in the Federal Register inviting law firms and attorneys to register with the Board if they wish to provide pro bono services to litigants at the U.S. Court of Appeals for the Federal Circuit. (June 13, 2014)
  • Special Counsel Carolyn Lerner appeared before a House Oversight Committee hearing on retaliation and mismanagement at the U.S. Chemical Safety Board. The Inspector General overseeing the CSB, EPA IG Arthur Elkins, submitted a statement to Congress alleging that a high-level OSC official may have revealed the identities of CSB whistleblowers to agency management and attempted to thwart OSC’s investigation. According to IG Elkins, a criminal investigation ensued but was closed when the Justice Department declined to prosecute. At OSC’s determination, the case was referred to the Office of Personnel Management IG as an administrative inquiry in late October 2013. Here is the December 3, 2013, Memorandum of Understanding between OSC and OPM IG regarding these allegations. An invitation for comment to OSC was not returned. (June 19, 2014)
  • The U.S. Court of Appeals for the Federal Circuit denied the MSPB’s request to make precedential its decision in O’Donnell v. MSPB, a case that the Board used to sua sponte resurrect a pre-WPEA, whistleblower-hostile ruling concerning adjudication-related disclosures. (June 19, 2014)
  • OSC issued a press release citing deficiencies in health care reports by the VA’s Office of Medical Inspector. (June 23, 2014)
  • OSC issued a press release describing its efforts to combat LGBT discrimination in the federal workplace. (June 30, 2014)

Revealed: MSPB’s Legislative Recommendations to Congress in FY 2014

An undated “MSPB Reauthorization Act of 2014” reveals no controversial provisions (e.g., summary judgment procedures), except that apparently the Board has had difficulties in obtaining agencies’ cooperation in conducting special studies of the merit systems, and that at one point in the last decade the Board faced the real possibility of being without any members, due to mandatory term limits.

Past MSPB legislative recommendations, from 1979 to January 2012, can be found here.

A Month in Merit Protection: Recapping Civil Service News for May 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Notable Rulings and Decisions

  • A deciding official does not have to consider each of the Douglas factors in making his penalty determination, however Board precedent–Portner v. Department of Justice, 119 M.S.P.R. 365 (2013)–requires the deciding official to consider the relevant Douglas factors which are implicated in the case before him. Chavez v. Small Business Administration, 2014 MSPB 37 (May 28, 2014)

Reports, Studies, and Newsletters

Other Items of Note

  • MSPB changed its FOIA referral/consultation policy for requests seeking documents that originate in other agencies. (May 1, 2014)
  • A comment period closed on an MSPB notice of proposed rulemaking that seeks to change the Board’s jurisdictional rules. (May 5, 2014)
  • MSPB issued a call in the Federal Register for suggested topics for special studies. (May 6, 2014)

Science Committee Sends Interesting Letter to Beleaguered Commerce IG

500px-US-DeptOfCommerce-Seal.svgIn case you missed it, a congressional committee issued a letter last week to Todd Zinser, the Department of Commerce Inspector General, which includes a number of interesting OSC retaliation reports, pleadings, and internal emails from the DOT IG that happen to concern FAA whistleblowers. Because this has been covered in the press already, I point you to this article by the Washington Post. Past coverage of this affair on this blog can be found here.