                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                              DOCKET NUMBER
     EX REL. VINCENT CEFALU,                      CB-1214-13-0187-T-1
                   Petitioner,

                 v.
                                                  DATE: September 8, 2014
     DEPARTMENT OF JUSTICE,
                 Agency.




           Bruce D. Fong, Esquire, and Elisabeth R. Brown, Esquire, Oakland,
             California, Carolyn N. Lerner, Esquire, Washington, D.C.,
             and Zahra Karinshak, Esquire, Atlanta, Georgia, for the petitioner.

           Andrew M. Dunnaville and Katherine Meng, Washington, D.C., for
             the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member

                Vice Chairman Wagner has recused herself from this case.
                     Chairman Grundmann issues a separate opinion.
                       Member Robbins issues a separate opinion.

                                         ORDER

¶1        This matter is before the Board based on the administrative law judge’s
     (ALJ) order certifying an interlocutory appeal of his determination that, for
     purposes of a prohibited personnel practice (PPP) under 5 U.S.C. § 2302(b)(12),
     the First Amendment constitutes a “law, rule, or regulation implementing, or
     directly concerning the merit system principles [contained in 5 U.S.C. § 2301].”
     The two Board members who are considering this case cannot agree on the
                                                                                           2

     disposition of the issue certified to the Board and therefore issue separate
     opinions on that issue. 1 However, the two Board members do agree with the
     ALJ’s determination that the Board has jurisdiction over this matter, but for a
     different reason than the one provided by the ALJ. As a result, we MODIFY the
     ALJ’s determination as to the jurisdictional question. This matter is now being
     RETURNED to the ALJ for further adjudication consistent with this decision.

                                       BACKGROUND
¶2         The Office of Special Counsel (OSC) filed a complaint for corrective action
     in which it asserted that the Department of Justice (the agency) committed a PPP
     under 5 U.S.C. § 2302(b)(12) by violating Vincent Cefalu’s rights under the First
     Amendment to the U.S. Constitution when it removed him from his Criminal
     Investigator position. As noted above, this matter came before the Board based
     on the ALJ’s order certifying an interlocutory appeal of his determination that,
     for purposes of a PPP under 5 U.S.C. § 2302(b)(12), the First Amendment
     constitutes a “law, rule, or regulation implementing, or directly concerning the
     merit system principles [contained in 5 U.S.C. § 2301].”
¶3         On October 5, 2012, the agency issued a decision to remove Cefalu from his
     Criminal Investigator position based on a charge of lack of candor, stemming
     from his subpoenaed testimony during a criminal suppression hearing. Complaint
     File (CF), Tab 7 at 5, 7-8 (Joint Stipulation of Facts). 2 OSC filed a complaint for


     1
      Therefore, this decision shall not be considered as precedent by the Board in any other
     case. 5 C.F.R. § 1200.3(d).
     2
       The removal was to be effective October 9, 2012, but OSC filed a request for a stay,
     which was granted, effective October 23, 2012. CF, Tab 7 at 6; see Special Counsel ex
     rel. Vincent Cefalu v. Department of Justice, MSPB Docket No. CB-1208-13-0006-U-1,
     Stay Order (Oct. 23, 2012). The stay was extended while OSC investigated and sought
     corrective action by the agency, and then, after OSC filed its complaint with the Board,
     indefinitely extended until such time as the Board issues a decision on the pending
     complaint for corrective action or otherwise terminates the stay. See Special Counsel
     ex rel. Vincent Cefalu v. Department of Justice, MSPB Docket Nos. CB-1208-13-0006-
     U-5, Stay Order (June 3, 2013), CB-1208-13-0006-U-7, Stay Order (July 16, 2013).
                                                                                          3

     corrective action against the agency, pursuant to 5 U.S.C. § 1214(b)(1)(A),
     (b)(2)(C), alleging that the agency’s decision to remove Cefalu violated his First
     Amendment right to free speech and constituted a PPP under 5 U.S.C.
     § 2302(b)(12). CF, Tab 1. The agency filed an answer in which it asserted as its
     first affirmative defense that OSC did not have jurisdiction over the matter
     because the First Amendment did not constitute a “law, rule, or regulation
     implementing or directly concerning[] the merit system principles.” CF, Tab 4
     at 4. The parties submitted a Joint Stipulation of Facts. CF, Tab 7. The ALJ
     noted that there was an issue regarding the Board’s jurisdiction, he directed the
     parties to file briefs regarding the jurisdictional issue, and the parties filed
     responsive briefs. See CF, Tabs 6, 8-9.
¶4         In his Order Concerning Jurisdiction, the ALJ rejected the agency’s first
     affirmative defense, concluded that the First Amendment constitutes a “law,
     rule[,] or regulation implementing or directly concerning the merit system
     principles,” and found that the Board has jurisdiction over this matter.           CF,
     Tab 10 at 12.       The ALJ indicated that he found persuasive the “implicit
     acknowledgments by the Board of such jurisdiction,” coupled with the legislative
     history of the Civil Service Reform Act of 1978 (CSRA) and subsequent
     interpretations of that history and the CSRA’s scope by various federal circuit
     courts. Id. Although the ALJ concluded that the Board has jurisdiction over this
     matter, he specifically noted in his order that OSC would ultimately be required
     to   prove   its    case   following   further   development   of   the   record   and
     adjudication. Id.
¶5         The agency filed a Motion for Certification of Interlocutory Appeal, OSC
     filed a response in which it only agreed with the agency that this issue satisfied
     the requirements for certification, and the ALJ certified the issue for interlocutory
     review.   See CF, Tabs 11-13.      We agree that the issue presented satisfies the
     criteria for certification of interlocutory appeal. 5 C.F.R. § 1201.92.
                                                                                          4

                                          ANALYSIS
     The Board has jurisdiction over this matter.
¶6         Pursuant to 5 U.S.C. § 1214(b)(2)(B), if OSC determines, in connection
     with any investigation, that there are “reasonable grounds to believe that a [PPP]
     has occurred, exists, or is to be taken which requires corrective action,” it shall
     report the determination together with any findings or recommendations to the
     Board, the agency involved, and the Office of Personnel Management (OPM). If,
     after a reasonable period of time, the agency does not act to correct the PPP, OSC
     may petition the Board for corrective action. 5 U.S.C. § 1214(b)(2)(C). With
     exceptions not applicable here, 3 the Board shall order corrective action if it
     determines that OSC has demonstrated that such a PPP has occurred, exists, or is
     to be taken. 5 U.S.C. § 1214(b)(4)(A).
¶7         In its complaint, OSC asserted that the agency’s decision to remove Cefalu
     based on speech protected by the First Amendment constituted a PPP
     under 5 U.S.C. § 2302(b)(12). CF, Tab 1 at 5-6. Section 2302(b)(12) states that
     a PPP occurs when an authorized employee “take[s] or fail[s] 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 [5 U.S.C. § 2301].”          OSC contends that the First
     Amendment is a law that implements the merit system principle found at 5 U.S.C.
     § 2301(b)(2), which states, in relevant part, that “[a]ll employees … should
     receive fair and equitable treatment in all aspects of personnel management …
     with proper regard for their privacy and constitutional rights.” CF, Tab 1 at 11.
¶8         We disagree with the ALJ’s apparent conclusion that the issue that he
     decided constitutes a jurisdictional issue. See CF, Tab 10 at 1 (“I find that the
     Board does have jurisdiction and therefore the case should proceed to a resolution

     3
       The Board shall order corrective action, as described in 5 U.S.C. § 1214(b)(4)(B), in
     cases involving an alleged PPP as described in 5 U.S.C. § 2302(b)(8) or 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D).
                                                                                     5

      on the merits.”). Rather, the Board has jurisdiction over this matter because OSC
      filed a complaint for corrective action, which it is authorized to do pursuant
      to   5 U.S.C.    § 1214.        See,   e.g.,   Hugenberg   v.   Department     of
      Commerce, 120 M.S.P.R. 381, ¶ 25 (2013) (stating that the Board has jurisdiction
      to consider allegations of a PPP under section 2302(b)(12) in the context of an
      OSC corrective action proceeding).
¶9          Chairman Grundmann and Member Robbins issue separate decisions on the
      matter of whether the First Amendment is a law, rule, or regulation directly
      concerning the merit system principles contained in 5 U.S.C. § 2301.

                                             ORDER
¶10         For the reasons set forth above, we MODIFY the ALJ’s determination as to
      the jurisdictional question. This matter is now being RETURNED to the ALJ for
      further adjudication consistent with this decision.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.
                   SEPARATE OPINION OF CHAIRMAN GRUNDMANN

                                               in

                                        Special Counsel
                        Ex Rel. Vincent Cefalu v. Department of Justice

                           MSPB Docket No. CB-1214-13-0187-T-1

     The First Amendment is a law, rule, or regulation directly concerning the merit
     system principles contained in 5 U.S.C. § 2301.
¶1           The agency argued that the First Amendment is not a law, rule, or
     regulation implementing or directly concerning the merit system principles.
     Complaint File (CF), Tab 9. In support of this argument, the agency asserted
     that:    (1) the Board has held that the merit system principles are not self-
     executing; (2) the legislative history of 5 U.S.C. § 2302(b)(12) states that the
     merit system principles may not be a basis of legal action; and (3) the U.S. Court
     of Appeals for the Federal Circuit (Federal Circuit) has recognized that
     constitutional violations do not automatically give rise to prohibited personnel
     practices (PPPs) under 5 U.S.C. § 2302(b)(12). CF, Tab 9 at 8-17.
¶2           In support of its position that the First Amendment is a law that implements
     or directly concerns the merit system principles, the Office of Special Counsel
     (OSC) asserted that: (1) Congress intended for OSC to have jurisdiction over
     unconstitutional personnel actions, and most federal circuit courts have applied
     this intent to foreclose constitutional damages claims by federal employees; (2)
     OSC has prevailed in two prior cases involving allegations that the agency’s
     decision to take action against an employee in violation of his First Amendment
     rights constituted a PPP; (3) the agency has relied on OSC’s jurisdiction over
     unconstitutional personnel actions in arguing against employees’ constitutional
     claims filed in district courts; and (4) the agency’s reliance on the Board’s prior
     cases is entitled to little weight because those cases arose in the context of a
     request for regulation review. CF, Tab 8.
                                                                                        2

¶3         I first must determine, by using “traditional tools of statutory construction,”
     if “Congress had an intention on the precise question at issue, [and, if so,] that
     intention is the law and must be given effect.” Chevron U.S.A., Inc. v. National
     Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984); see Delverde,
     SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000) (explaining that the
     “traditional tools of statutory construction” include an examination of the
     statute’s text, structure, and legislative history, as well as an application of the
     relevant canons of interpretation).       I therefore begin my analysis with an
     examination of the statutory language itself.        The First Amendment states:
     “Congress shall make no law respecting an establishment of religion, or
     prohibiting the free exercise thereof; or abridging the freedom of speech, or of
     the press; or the right of the people peaceably to assemble, and to petition the
     Government for a redress of grievances.” U.S. Const. amend. I. As discussed
     herein, I have also considered the relevant statutory language in 5 U.S.C.
     §§ 2301, 2302. See infra ¶ 6.
¶4         I find that neither the Constitution, nor the Civil Service Reform Act
     (CSRA or the Act), explicitly states that a constitutional violation may be
     actionable as a PPP under section 2302(b)(12). Nevertheless, the CSRA is not
     silent in this regard.   Rather, it states that it shall be a PPP for any employee 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.”   5 U.S.C. § 2302(b)(12).    As noted above, one of the merit principles
     provides, in relevant part, that “[a]ll employees . . . should receive fair and
     equitable treatment in all aspects of personnel management . . ., and with proper
     regard for their privacy and constitutional rights.”       5 U.S.C. § 2301(b)(2).
     Applying a straightforward reading of this language, there is no doubt that the
     First Amendment is a law. Similarly, there is no question that the cited merit
     principle stresses the importance of an agency’s treatment of its employees vis-à-
                                                                                     3

     vis their constitutional rights. The question, however, still remains whether the
     First Amendment either implements or directly concerns this tenet of federal
     personnel management.
¶5           In Wells v. Harris, 1 M.S.P.R. 208, 242-43 (1979), modified on other
     grounds by Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the Board
     declared invalid certain regulations promulgated by the Office of Personnel
     Management (OPM) on the grounds that they would necessarily require the
     commission of a PPP under 5 U.S.C. § 2302(b)(11) (1979) (current version
     at 5 U.S.C. § 2302(b)(12)). 1 In reaching that conclusion, the Board relied on
     normal usage to define “implementing,” as used therein, as meaning “to carry
     out, accomplish, fulfill or give practical effect to, in the context of a manifest
     purpose or design to prevent conduct which directly and substantially
     ‘undermines’ the merit system principles and the ‘integrity’ of the merit system.”
     Wells, 1 M.S.P.R. at 243. Recognizing that it would be hard to find a law more
     clearly designed to give effect to merit system principle (b)(6) than the law at
     issue there, 5 U.S.C. § 4303(a), the Board found it unnecessary to consider what
     the term “directly concerning” encompasses. Wells, 1 M.S.P.R. at 242.
¶6           But it is noteworthy that, in construing section 2302(b)(11), the Board
     looked for general guidance to section 3(2) of the Act, 2 setting forth Congress’
     findings and statement of purpose, that PPPs should be defined so as to prevent
     “‘conduct which undermines the merit system principles and the integrity of the
     merit system.’” Wells, 1 M.S.P.R. at 242. I also recognize that the Board has
     subsequently opined that a constitutional provision cannot be a law within the
     meaning of section 2302(b)(12).              See Radford v. Office of Personnel
     Management, 69 M.S.P.R. 250, 255 n.3 (1995); Pollard v. Office of Personnel
     Management, 52 M.S.P.R. 566, 570 n.3 (1992). In both instances, without any


     1
         Subsection (b)(11) was redesignated as subsection (b)(12) in 1998.
     2
         See 5 U.S.C. § 1101 note.
                                                                                      4

     explanation, the Board summarily concluded that “the constitutional provision
     which the merit system[] principle in section 2301(b)(2) incorporates cannot, of
     course, be both the merit system[] principle and the violated law, rule or
     regulation which implements or directly concerns the merit system[] principle.”
     Despite the “of course,” there is nothing obvious about this observation. Rather,
     in Wells, the Board determined that “laws” for purposes of section 2302(b)(11)
     could encompass those that were enacted previous and subsequent to the passage
     of the CSRA, as well as the provisions of the Act itself. Wells, 1 M.S.P.R. at
     242. Thus, the mere fact that the Constitution was ratified prior to enactment of
     the CSRA and not expressly for the purpose of carrying out or addressing the
     statutory merit system principles does not render it outside the scope of section
     2302(b)(12).
¶7        It is true, however, that in Special Counsel v. Harvey, 28 M.S.P.R. 595,
     601-02 (1984), rev’d on other grounds, 802 F.2d 537 (D.C. Cir. 1986), the Board
     limited the definition of “implementing” adopted in Wells to apply to statutes that
     prescribe “processes and procedures that were deliberately designed to
     accomplish a specific result.” It is apparent that the First Amendment reasonably
     can be construed as prescribing procedures designed to ensure the freedoms
     established therein. As such, I conclude that the First Amendment is not a law
     “implementing” a merit system principle, the violation of which would give rise
     to a PPP under section 2302(b)(12).
¶8        Yet, the question remains as to whether the First Amendment “directly
     concerns” a merit system principle. In Harvey, the Board addressed the meaning
     of “directly concerns” in section 2302(b)(12) for the first time.       There, the
     Special Counsel brought various PPP charges against the respondent a Senior
     Executive Service (SES) manager, including that he violated section 2302(b)(12)
     by idling a subordinate SES employee in contravention of 5 U.S.C. § 3131(7).
     Section 3131(7) required that the SES be administered to protect senior
     executives from arbitrary and capricious actions. The case thus presented the
                                                                                        5

      issue as to whether section 3131(7) implemented or directly concerned a merit
      system principle. Because that provision did not prescribe the types of processes
      or procedures as necessary to find that it implemented a merit system principle,
      the Board went on to determine whether it directly concerned such principles.
      The Board found that it did, and in doing so, looked to the purpose of section
      2302(b)(12) as reflected in the CSRA’s legislative history, “to make unlawful
      those actions which are inconsistent with merit principles, but which do not fall
      within the . . . [other] categories of personnel practices.” Harvey, 28 M.S.P.R. at
      602. As the Board noted, “[t]oo technical a reading of paragraph [(b)(12)] would
      defeat its purpose.”    Id.   The Board found no significance in the ultimate
      adoption of the term “concerning” rather than “relating to,” which appeared in
      another version of the bill, insofar as both terms have essentially the same
      meaning.    It found that the insertion of the word “directly” “warrants the
      conclusion that if a law does not ‘implement’ the merit principles, its connection
      to the merit principles must be clear.” Id. at n.13.
¶9         However, the Board did not in Harvey, or elsewhere, define or restrict the
      nature of the connection between the law and the merit system principles for
      purposes of section 2302(b)(12). The dictionary broadly defines “connection” as
      “association” or “relationship.”      Given the patent link between the First
      Amendment and the merit system principle that the federal service be managed
      with proper regard for employees’ constitutional rights, I find that a plain reading
      of the statutory language compels the conclusion that the First Amendment is a
      law directly concerning section 2301(b)(2).
¶10        The agency has asserted that there are several cases in which the Board has
      impliedly or expressly held that an alleged constitutional violation does not
      constitute a PPP.    See CF, Tab 9 at 10-16; Radford, 69 M.S.P.R. at 254-55;
      Pollard, 52 M.S.P.R. at 569-70 & n.3; Wells, 1 M.S.P.R. at 215. However, these
      cases are largely relevant only to prove that the merit principles are not
      self-executing and that section 2302(b)(12) requires a two-step analysis, i.e., a
                                                                                              6

      finding that the action violates a law and that the law implements or directly
      concerns a merit system principle. Wells, 1 M.S.P.R. at 215. There is no dispute
      that the statute requires this two-step analysis in order to find a PPP under section
      2302(b)(12). 3
¶11         Thus, I find the agency’s reliance on Wells, Pollard, and Radford to be
      unpersuasive. With the exception of the aforementioned unexplained footnotes in
      Pollard and Radford, those cases primarily concern the Board’s application of the
      two-step analysis to section 2302(b)(12) claims, an approach that is not at issue
      here. Again, there seems to be an unstated assumption underlying the agency’s
      position that making a constitutional violation actionable as a PPP under section
      2302(b)(12) somehow conflates the two-step analysis into a claim of a direct
      violation of section 2301(b)(2). But regardless of any perceived circularity, there
      is no question that the First Amendment is a law directly concerning a merit
      system principle, and as such, its violation should be actionable as a PPP under
      section 2302(b)(12).
¶12         Furthermore, OSC has identified cases in which the Board implicitly found
      that an agency’s action that violates an employee’s or applicant’s First
      Amendment rights constitutes a PPP. See CF, Tab 8 at 12-14 (citing Moredock v.
      Department of Justice, No. 02-3258, 2003 WL 26098542 (Fed. Cir. Jan. 10,
      2003); Special Counsel v. Environmental Protection Agency, 79 M.S.P.R. 542
      (1998), aff’d sub nom. Hubbard v. Merit Systems Protection Board, 205 F.3d
      1315 (Fed. Cir. 2000)).     Prior Board decisions have implicitly, if not explicitly,
      reflected support for finding that a First Amendment violation is actionable as a
      PPP under section 2302(b)(12).             For example, in Special Counsel v.
      Environmental Protection Agency, the Special Counsel brought a complaint
      against the agency charging it with violating section 2302(b)(11) when it failed to

      3
        I agree, however, that the fact that Wells, Pollard, and Radford arose in the context of
      the Board’s review of regulations is not sufficient to distinguish them on the issue
      presented here.
                                                                                        7

      select an applicant in violation of his First Amendment rights. While the issue on
      review concerned the applicant’s entitlement to back pay and did not focus on the
      merits of the underlying PPP, it is still relevant to the issue present here.
      Specifically, the Board not only found no error in the ALJ’s finding that the
      agency violated section 2302(b)(11) when it did not select the applicant in
      violation of his First Amendment rights but affirmatively adopted that finding.
      Id. at 546. In addition, in Special Counsel v. Lynn, 29 M.S.P.R. 666, 667 (1986),
      the Special Counsel filed a complaint against two individuals for removing
      another employee because of conduct protected under the First Amendment in
      violation of then-section 2302(b)(11).   The Special Counsel ultimately moved to
      dismiss the complaint because the employing agency disciplined the individuals
      for the same misconduct giving rise to the complaint. In the decision granting
      that request, the Board did not challenge whether the constitutional violation
      could be actionable as a PPP.
¶13        I also have considered OSC’s discussion of various federal circuit court
      decisions, which have held that federal employees who seek damages for
      constitutional claims against their employers arising from their employment are
      prohibited from pursuing those claims in federal court; instead, the exclusive
      mechanism for such claims is through the CSRA.           CF, Tab 8 at 15-18; see
      Irizarry v. United States, 427 F.3d 76, 77-78 (1st Cir. 2005); Robbins v.
      Bentsen, 41 F.3d 1195, 1201-03 (7th Cir. 1994); Volk v. Hobson, 866 F.2d 1398,
      1400-04 (Fed. Cir. 1989); McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir. 1988).
      Some of these circuit court decisions state that an alleged constitutional violation
      constitutes a PPP, or they otherwise reference the PPP described in 5 U.S.C.
      § 2302(b)(12) or the merit system principle at 5 U.S.C. § 2301(b)(2). See, e.g.,
      Ferry v. Hayden, 954 F.2d 658, 661 & n.4 (11th Cir. 1992); Saul v. United
      States, 928 F.2d 829, 834 (9th Cir. 1991); Petrini v. Howard, 918 F.2d 1482,
      1484 (10th Cir. 1990); Spagnola v. Mathis, 859 F.2d 223, 225 n.3 (D.C. Cir.
      1988) (en banc). However, with the exception of the Volk decision, these circuit
                                                                                               8

      court decisions are persuasive but not controlling authority for the Board. Fairall
      v. Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir.
      1987). In addition, none of the aforementioned appeals, including Volk, required
      a resolution of the technical issue before us now on interlocutory appeal.
¶14         Member Robbins disagrees claiming that it “broadly expands the scope of
      the Board’s jurisdiction . . . to consideration and application of constitutional
      law.” Member Robbins’ Separate Opinion (Sep. Op.), ¶ 2. However, his view of
      the Board’s existing authority to adjudicate constitutional claims, and hence his
      criticism of my position as an unwarranted expansion of that authority, is not
      supported by precedent. It is true that the Board has consistently adhered to the
      principle that, as an administrative agency, it lacks authority to review challenges
      to the constitutionality of statutes. 4 See MacLean v. Department of Homeland


      4
        I believe that my colleague’s reliance on Elgin v. Department of the Treasury, 132 S.
      Ct. 2126 (2012), to support his theory that “the Board has long avoided independent
      analysis of constitutional claims” is misplaced. Sep. Op., ¶ 5. Mr. Elgin had filed an
      appeal to the Board challenging his removal from federal service, effected pursuant to
      5 U.S.C. § 3328, which bars individuals from federal employment who knowingly and
      willfully fail to register for the Selective Service. Elgin, 132 S. Ct. at 2131. The
      Board’s ALJ dismissed the appeal for lack of jurisdiction, in pertinent part, on the
      ground that the Board lacks the authority to rule upon the constitutionality of a statute.
      Id. Elgin did not petition for review of this ruling to the full Board or the Federal
      Circuit, but, instead, filed in district court, joining his case with other plaintiffs. Id.
      The government sought to dismiss the cases on the grounds that the CSRA provided the
      exclusive remedial scheme for adjudicating the plaintiffs’ claims, including their facial
      challenge to the constitutionality of 5 U.S.C. § 3328. Elgin, 132 S. Ct. at 2131.
      The case ultimately reached the U.S. Supreme Court, which held that the CSRA
      precluded district court jurisdiction over the petitioners’ challenge to the
      constitutionality of the statute. Id. at 2134. In its decision, the Court addressed, inter
      alia, the petitioners’ argument that such a holding left them with no meaningful
      recourse for review because the Board lacked authority to declare a federal statute
      unconstitutional. Id. at 2136. It was in this context that the Court noted both the
      Board’s longstanding refusal to pass upon the constitutionality of legislation, as well as
      its own previous statements acknowledging that adjudication of such issues is generally
      beyond the jurisdiction of administrative bodies. Id. Declining to decide whether the
      Board’s view of its authority was correct, or even whether the “oft-stated principle that
      agencies cannot declare a statute unconstitutional is truly a matter of jurisdiction,” the
      Court found that, regardless, the CSRA provided the exclusive remedial scheme for the
                                                                                                9

      Security, 116 M.S.P.R. 562, 573-74 (2011), rev’d on other grounds, 714 F.3d
      1301 (2013), cert. granted, 134 S. Ct. 2290 (2014); Malone v. Department of
      Justice, 14 M.S.P.R. 403, 406 (1983). Yet, the Board has also long recognized
      the distinction between authority to declare a statute unconstitutional and “its
      authority to adjudicate a constitutional challenge to an agency’s application of a
      statute.” May v. Office of Personnel Management, 38 M.S.P.R. 534, 538 (1988)
      (deciding to address whether the agency’s termination of the appellant’s annuity
      without adequate notice is consistent with fundamental concepts of due process).
¶15         Indeed, far from evidencing a disinclination to review constitutional
      challenges    to   agency    actions,   the   holdings    in   Wigen     v.   U.S.   Postal
      Service, 58 M.S.P.R. 381, 383 (1993), and Delk v. Department of the
      Interior, 57 M.S.P.R. 528, 530 (1993), cited by Member Robbins, are plainly
      predicated on the Board’s exercise of jurisdiction to adjudicate such claims. The
      issues in those cases concerned, respectively, the application of the constitutional
      doctrines relating to the exclusion of evidence and prohibition against double
      jeopardy.    While ultimately finding that these doctrines did not afford the
      appellants the protections claimed thereunder, the Board did not express any
      doubt as to its authority to reach and rule upon those claims.
¶16         Similarly, in Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 684
      n.12 (1991), the Board explicitly recognized that, even where an agency’s action
      was authorized within the meaning of 5 U.S.C. § 7701(c)(2)(C), the Board will
      nonetheless not sustain an action taken in violation of an employee’s
      constitutional rights.    In support, the Board cited numerous cases wherein it
      “adjudicated, as an independent affirmative defense, nonprobationary employees’


      petitioners’ facial challenge to the constitutionality of the statute barring their
      employment. Id. at 2136-37. In fact, in reaching that conclusion, the Court cited many
      instances in which the Board had adjudicated constitutional challenges to agency
      actions and deemed any distinction under the CSRA between the adjudication of these
      claims and those raising facial challenges to the constitutional validity of a statute to be
      “dubious at best.” Id. at 2136 n.5.
                                                                                          10

      constitutional challenges to appealable actions effected under statute or
      regulation.”    Stephen, 47 M.S.P.R. at 684 n.12 (citing Cooper v. U.S. Postal
      Service, 42 M.S.P.R. 174, 178 (1989) (upholding the admissibility of                the
      appellant’s custodial statement upon determining that the appellant had been
      advised of and had waived his Fifth Amendment rights under Miranda), aff’d,
      904   F.2d     46   (Fed.   Cir.   1990)   (Table);   Sternberg   v.   Department    of
      Defense, 41 M.S.P.R. 46, 51 (1989) (reviewing the claim that the agency illegally
      searched the employee in violation of the Fourth Amendment); Wentzel v.
      Department of the Interior, 33 M.S.P.R. 344, 352-53 (determining whether the
      employee’s speech was protected by the First Amendment), aff’d, 837 F.2d 1097
      (Fed. Cir. 1987) (Table); Svejda v. Department of the Interior, 7 M.S.P.R. 108,
      111 (1981) (holding that constitutional due process applies to a nonprobationary
      employee’s removal from federal employment)); see Chisolm v. U.S. Postal
      Service, 7 M.S.P.R. 116, 119 (1981) (determining the admissibility of the
      appellant’s statement under the Fifth Amendment).
¶17         Thus, while the Board has “steered clear” of reviewing facial challenges to
      the constitutional validity of federal statutes, our precedent and history simply do
      not support the conclusion that the Board has generally declined jurisdiction to
      review claims that an agency action violated an appellant’s constitutional rights.
¶18         The Member charges that it “trivializes our Constitution” to recognize the
      Board’s statutory jurisdiction to adjudicate constitutional claims either as
      affirmative defenses to adverse actions or in the context of our role under the
      CSRA’s scheme for correcting PPPs in the federal civil service. The criticism
      seems tacitly grounded on the premise that the only laws covered under section
      2302(b)(12) are those enacted for the specific purpose of implementing the merit
      system principles.      However, as argued elsewhere in this opinion, such a
      construction of section 2302(b)(12) essentially renders meaningless the other
      category of laws covered, i.e., those “directly concerning” the merit system
      principles.    In this, I simply disagree with my colleague that viewing the
                                                                                           11

      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.              Likewise, unlike my
      colleague, I do 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.
¶19         Finally, I have considered the parties’ remaining arguments but none
      change the outcome. 5 Based on my review of the statutory language, legislative
      history, and relevant precedent, I conclude that the First Amendment is a law,
      rule, or regulation that directly concerns merit system principles.




      ______________________________
      Susan Tsui Grundmann
      Chairman




      5
        I have also considered the Supreme Court’s recent decision in Lane v. Franks, 134 S.
      Ct. 2369 (2014). There, the Court determined that the First Amendment protects a
      public employee who provided truthful sworn testimony, compelled by subpoena,
      outside the course of his ordinary job responsibilities. Lane, 134 S. Ct. at 2372-74. I
      find that the Court’s discussion of relevant First Amendment principles and its holding
      in Lane does not affect my analysis of the narrow statutory construction issue before us
      on interlocutory appeal.
                SEPARATE OPINION OF MEMBER MARK A. ROBBINS


                                               in

                                       Special Counsel
                       Ex Rel. Vincent Cefalu v. Department of Justice

                           MSPB Docket No. CB-1214-13-0187-T-1

¶1         I concur that the Board has jurisdiction over this matter.
¶2         I respectfully disagree with Chairman Grundmann’s Separate Opinion (Sep.
     Op.) that the First Amendment to the U.S. Constitution is a law, rule, or
     regulation directly concerning the merit system principles contained in 5 U.S.C.
     § 2301. Such a view potentially trivializes our Constitution, and is contrary to
     Board precedent. It broadly expands the scope of the Board’s jurisdiction, along
     with that of the Office of Special Counsel (OSC), to consideration and
     application of constitutional law, best left to Article III courts.
¶3         On a superficial level, the U.S. Constitution is a law.         It, along with
     treaties, comprises the supreme law of the land. U.S. Const. Article VI. But to
     reduce the Constitution to the nature of a codified statute, which I believe is what
     was anticipated in Title 5 and subsequent case law requirements 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.
¶4         The Chairman’s Separate Opinion is a fair discussion and concession (as I
     too concede) of the close-call nature of the arguments presented by both the
     agency and OSC. Nonetheless, the Board has long implied or expressly held that
     an alleged constitutional violation does not constitute a PPP. The Chairman’s
                                                                                            2

     Separate Opinion simply disagrees with precedent and decides to move in a
     completely different direction.
¶5         As the U.S. Supreme Court noted in Elgin v. Department of the
     Treasury, 132 S. Ct. 2126, 2130 (2012), the Board has long avoided independent
     analysis of constitutional claims. 1      The main exception is in the context of
     constitutional due process where the Supreme Court and our reviewing court have
     made clear that this constitutional right must be applied when taking an adverse
     action against a public employee, because specific statutes create a property
     interest in employment. See Gilbert v. Homar, 520 U.S. 924 (1997); Cleveland
     Board of Education v. Loudermill, 470 U.S. 532 (1985); Stone v. Federal Deposit
     Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).
¶6         Otherwise,     the   Board    has   generally    steered   clear   of   reviewing
     constitutional claims. See, e.g., Wigen v. U.S. Postal Service, 58 M.S.P.R. 381,
     383 (1993) (and cases cited therein) (the constitutional prohibition against double
     jeopardy applies only to defendants in criminal cases, not to petitioners in
     administrative proceedings before the Board); Delk v. Department of the
     Interior, 57 M.S.P.R. 528, 530-31 (1993) (and cases cited therein) (finding that
     the Supreme Court’s decisions regarding the application of the exclusionary rule
     to proceedings other than criminal prosecutions do not provide a basis on which




     1
       The Chairman’s lengthy discussion of Elgin (Sep. Op. n.4) misses my point, namely,
     that administrative bodies avoid deciding constitutional issues absent jurisdiction being
     expressly granted in statute or judicial opinion, as due process is for the Board. While
     not deciding the matter in Elgin, I find it instructive for the Supreme Court to have
     outlined a process that accommodates our constraint by noting that the Board is able to
     identify constitutional issues, gather the appropriate underlying facts, and pass the
     record up to the U.S. Court of Appeals for the Federal Circuit wherein lies the authority
     to consider and decide constitutional issues. And the argument that the Court found
     “dubious,” Elgin, 132 S. Ct at 2136 n.5—the petitioners’ assertion that challenging an
     agency’s actions on constitutional grounds is distinct from challenging the
     constitutionality of the statute upon which those actions were taken—is not an issue in
     the present case.
                                                                                              3

     to extend the exclusionary rule to Board proceedings) 2; May v. Office of
     Personnel Management, 38 M.S.P.R. 534, 538 (1988) (holding that the Board is
     without authority to determine the constitutionality of federal statutes); but see
     Wiley v. Department of Justice, 89 M.S.P.R. 542, 545, ¶ 5 (2001) (the Board
     reviewed whether searching a government employee’s private property was
     subject to Fourth Amendment restraints).
¶7          I recognize a Fifth Amendment Miranda warning is required when an
     employee is subjected to a custodial interrogation. However, this is necessary
     only when, during the administrative investigation, the employee must avoid
     discussing the charged misconduct (always criminal in nature) because he is
     trying to protect himself against a self-incriminating disclosure that he reasonably
     believes could be used later in his own criminal prosecution or could lead to other
     evidence that might be so used. See Kastigar v. United States, 406 U.S. 441,
     444–45    (1972);    Weston     v.   U.S.   Department      of   Housing     and   Urban
     Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983); Tannehill v. Department of
     the Air Force, 58 M.S.P.R. 219, 222 (1993). Thus, the constitutional claim in
     such cases is relevant only because of a possible criminal conviction, not as
     protection against potential administrative adverse action.
¶8          To the specific constitutional issue presented in the instant case, the Board
     has previously declined to go where the Chairman’s Separate Opinion now takes
     us. In Wells v. Harris, 1 M.S.P.R. 208, 215 (1979), modified on other grounds by
     Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the Board noted that the
     legislative history of the merit system principles indicates that the principles were


     2
       I do not understand the Chairman’s assertion that the Wigen and Delk decisions “are
     plainly predicated on the Board’s exercise of jurisdiction to adjudicate such claims.”
     Sep. Op., ¶ 15. In both cases the Board noted and affirmed decisions below that did not
     apply the appellants’ constitutional claims, noting that, as an administrative body,
     double jeopardy and the exclusionary rule are outside the Board’s purview. Holding
     such is certainly not an assertion of jurisdiction over the substance of the constitutional
     claims under other sets of facts.
                                                                                           4

      “stated in hortatory terms” and were “not self-executing.” The Board delineated
      a two-step analysis for establishing that an agency’s action constituted a PPP
      under section 2302(b)(12): (1) the action violates a law, rule, or regulation; and
      (2) the violated law, rule, or regulation is one that implements or directly
      concerns the merit system principles. Wells, 1 M.S.P.R. at 215.
¶9           In Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569-70
      & n.3 (1992), the Board discussed the Wells decision, and rejected the appellant’s
      equal protection clause challenge to an OPM rule because he had not identified
      any law, rule, or regulation implementing or directly concerning the merit system
      principle at section 2301(b)(2). The Board specifically noted in Pollard that “the
      constitutional   provision    which    the   merit   systems     [sic]   principle   in
      section 2301(b)(2) incorporates cannot, of course, be both the merit systems [sic]
      principle and the violated law, rule or regulation which implements or directly
      concerns the merit systems [sic] principle.” Pollard, 52 M.S.P.R. at 570 n.3.
¶10          Similarly, the Board considered, in Radford v. Office of Personnel
      Management, 69 M.S.P.R. 250, 254-55 (1995), an appellant’s assertion that
      implementation of an OPM regulation would require the commission of a PPP
      under section 2302(b)(12) by violating his constitutional right to equal protection.
      The Board found his assertion unavailing in part because the constitutional
      provision did not constitute a law, rule, or regulation implementing or directly
      concerning the merit system principles in section 2301(b)(2). 69 M.S.P.R. at 255
      & n.3. 3




      3
        Regarding both Pollard and Radford, the Chairman’s Separate Opinion criticizes the
      Board for having summarily concluded this proposition without explanation, noting that
      “[d]espite the ‘of course,’ there is nothing obvious about this observation.” Sep. Op.,
      ¶ 6. And yet, a few paragraphs later the opinion similarly concludes that “the patent
      link between the First Amendment and the merit principle . . . compels the conclusion
      that the First Amendment is a law directly concerning section 2301(b)(2).” Sep. Op.,
      ¶ 9.
                                                                                          5

¶11         Moreover, the Federal Circuit has recognized that constitutional violations
      do not automatically give rise to PPPs under 5 U.S.C. § 2302(b)(12). See Price v.
      Social Security Administration, 398 F.3d 1322, 1326 (Fed. Cir. 2005). In Price,
      the petitioner argued that, because the Board found her due process rights
      had been violated, the agency thereby committed a PPP. Id. The Federal Circuit
      rejected outright the argument that denying constitutional due process rights
      automatically gives rise to a PPP. Id. While Price arose in the context of a
      request for attorney fees and not a corrective action case, it is significant because,
      had the Federal Circuit accepted the petitioner’s argument, it would have
      acknowledged either that the merit system principles are self-executing, or that
      the Constitution is, in fact, a law, rule, or regulation that directly concerns that
      merit principle. The Court declined to do either.
¶12         Further supporting the Board’s traditional view of its limited role in its
      consideration of constitutional claims, the Federal Circuit has taken it upon itself
      to address such claims even when they are raised for the first time before the
      court, rather than to remand to the Board for consideration and exhaustion. See
      Sarvasova v. Office of Personnel Management, 126 F. App’x 954 (Fed. Cir.
      2005); Beard v. General Services Administration, 801 F.2d 1318, 1321
      (Fed. Cir. 1986).
¶13         The Chairman agrees with OSC that the Board has implicitly found that an
      agency action that violates an employee’s or applicant’s First Amendment rights
      constitutes a PPP. See CF, Tab 8 at 12-14 (citing Moredock v. Department of
      Justice, No. 02-3258, 2003 WL 26098542 (Fed. Cir. Jan. 10, 2003); Special
      Counsel v. Environmental Protection Agency, 79 M.S.P.R. 542 (1998), aff’d sub
      nom. Hubbard v. Merit Systems Protection Board, 205 F.3d 1315 (Fed. Cir.
      2000)). These cases, however, are easily distinguishable.
¶14         In Special Counsel v. Environmental Protection Agency, 79 M.S.P.R.
      at 555, the Board denied OSC’s request for corrective action in the form of back
      pay and monetary damages. In so doing, we noted in the background that in
                                                                                          6

      Hubbard v. Environmental Protection Agency, 982 F.2d 531, 532 (D.C.
      Cir. 1992), the court had affirmed the U.S. District Court’s finding that the
      agency’s failure to hire Mr. Hubbard violated his First Amendment rights. But
      the nature of the PPP in question was not a contested or dispositive issue before
      the Board.
¶15         In Moredock, 2003 WL 26098542, at *1, the Federal Circuit recited 4 that
      the chief ALJ granted OSC’s request for corrective action upon finding that the
      agency committed a PPP when it removed Mr. Moredock in violation of his free
      speech rights, the parties entered into a settlement agreement to resolve how the
      agency would comply with the chief ALJ’s order, and the Board dismissed the
      appeal as settled. Under these circumstances, there was no need for the Board to
      address, let alone discuss, the chief ALJ’s findings.      To the extent that OSC
      asserts that the Board “implicitly” acknowledged subject matter jurisdiction in
      Moredock by enforcing the agreement, CF, Tab 8 at 14, jurisdiction is a separate
      issue from OSC’s legal theory for seeking corrective action for a PPP
      under 5 U.S.C. § 2302(b)(12).
¶16         The present case involves the First Amendment, but the Chairman’s
      rationale and the interlocutory order of the ALJ are not so limited. The 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.




      4
       The Board did not issue a published decision in this matter, so I rely on the Federal
      Circuit’s discussion of this background information.
                                                                                      7

¶17         In the absence of any specific authority that requires us to modify or
      overrule our Wells/Pollard/Radford line of cases, I do not believe that provisions
      of the U.S. Constitution equate to laws, rules, or regulations that implement or
      directly concern the merit system principles.



      ______________________________
      Mark A. Robbins
      Member
