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Of Note...



Prohibited Personnel Practice of the Month

NEW PROHIBITED PERSONNEL PRACTICE

Number 13:
This recent addition to 5 U.S.C. § 2302(b) makes it a prohibited personnel practice for any employee who has authority to take, direct others to take, recommend, or approve any personnel action, to:

(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.”

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.