Special Counsel ex rel. Vincent Cefalu v. Department of Justice

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