The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAKHMATULLA ASATOV, DOCKET NUMBERS
Petitioner, CB-1205-15-0036-U-1
CB-1205-15-0037-U-1
v.
OFFICE OF
PERSONNEL MANAGEMENT, DATE: March 9, 2016
DEPARTMENT OF THE ARMY,
and
DEPARTMENT OF JUSTICE,
Agencies.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rakhmatulla Asatov, Plainville, Connecticut, pro se.
Julie Ferguson Queen, Washington, D.C., for the Office of
Personnel Management.
Sarah J. Wild, Washington, D.C., for the Department of Justice.
Steven L. Parker, APO, AE, for the Department of the Army.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The petitioner asks the Board to review a regulation of the Office of
Personnel Management (OPM), which he contends is invalid on its face and as
applied to him by the Department of the Army and by the Department of Justice’s
Executive Office for U.S. Attorneys. For the reasons discussed below, we DENY
the petitioner’s request.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The Board has original jurisdiction to review rules and regulations
promulgated by OPM. 5 U.S.C. § 1204(f). The Board is authorized to declare an
OPM rule or regulation invalid on its face if the Board determines that the
provision would, if implemented by an agency, require any employee to violate
5 U.S.C. § 2302(b). See 5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has
authority to determine that an OPM regulation has been invalidly implemented by
an agency, if the Board determines that the provision, as implemented, has
required any employee to violate section 2302(b). 5 U.S.C. § 1204(f)(2)(B).
¶3 The Board’s regulations direct the individual requesting review to provide
the following information: a citation identifying the challenged regulation; a
statement (along with any relevant documents) describing in detail the reasons
why the regulation would require, or its implementation would require, an
employee to commit a prohibited personnel practice; specific identification of the
prohibited personnel practice at issue; and a description of the action the
requester desires the Board to take. 5 C.F.R. § 1203.11(b); see Roesel v. Office of
Personnel Management, 119 M.S.P.R. 15, ¶ 17 (2012); DiJorio v. Office of
Personnel Management, 54 M.S.P.R. 498, 500 (1992). This information is
3
required for the individual to be able to state a case within the Board’s
jurisdiction. 5 C.F.R. § 1203.11(b)(1).
¶4 The petitioner requests the Board to review an OPM regulation in title 5,
part 300, subpart F “Time In Grade Restrictions.” The regulation, 5 C.F.R.
§ 300.603(a), provides:
(Coverage) This subpart applies to advancement to a General
Schedule position in the competitive service by any individual who
within the previous 52 weeks held a General Schedule position under
nontemporary appointment in the competitive or excepted service in
the executive branch, unless excluded by paragraph (b) of
this section.
An individual covered by this provision who is a candidate for advancement to a
higher graded position is generally required under the time-in-grade regulations
to have served for a minimum of 52 weeks in a position at the next lower grade or
the next two lower grades. See 5 C.F.R. § 300.604. The petitioner’s request for
review stems from his exclusion under these regulations from consideration for
positions which he sought in the Department of the Army and in the Department
of Justice. 2 Because the petitioner had occupied a General Schedule position
within the year before each of his applications for a position and because his prior
service was not long enough or at the required grade, he was found by both
agencies to be ineligible for the appointments he sought.
¶5 The petitioner contends that the regulation’s eligibility restriction based on
time-in-grade violates his right to veterans’ preference and therefore requires a
violation of 5 U.S.C. § 2302(b)(11), which makes it a prohibited personnel
practice to knowingly take, recommend or approve an action that would violate a
veterans’ preference requirement or to knowingly fail to do so if such failure
would have that effect. While the petitioner has identified a specific prohibited
2
The two claims are based on essentially the same argument and so have been
consolidated for consideration.
4
personnel practice, his description of the reasons why the regulation requires or
has required a violation of section 2302(b)(11) is not persuasive.
¶6 The petitioner argues that the regulation’s coverage only should apply only
to current employees and that its inclusion of recent former employees like
himself requires a violation of veterans’ preference requirements. However, he
has not identified any authority for the proposition that the regulation should
apply only to current employees or any law that excludes from the regulation’s
coverage former employees with veterans’ preference. The statutes that the
petitioner cites, 5 U.S.C. §§ 3313 and 3317, do not address time-in-grade
restrictions, and he has offered no rationale for excluding the application of this
neutral eligibility restriction to preference-eligible individuals. As OPM pointed
out in its response to the petitioner’s request, the U.S. Court of Appeals for the
Federal Circuit has upheld the time-in-grade restrictions as per se valid and
subject only to application challenges in its decision in Dowd v. United States,
713 F.2d 720, 724 (Fed. Cir. 1983). The court upheld the regulation on the basis
of its stated purpose of avoiding the management problems that would result from
excessively rapid promotions within the work force. Id. at 721. See 5 C.F.R.
§ 300.601 (“The restrictions in this subpart are intended to prevent excessively
rapid promotions in competitive service General Schedule positions and to protect
competitive principles.”). While violation of veterans’ preference rights was not
at issue in Dowd, the Board previously has rejected the petitioner’s facial
challenge to section 300.603(a) on this basis in Asatov v. Department of Justice,
MSPB Docket No. PH-330-12-0305-I-1, Final Order (Aug. 9, 2013).
¶7 The petitioner also raises a challenge to the Department of the Army’s
application to his case of the section 300.603(a) time-in-grade restriction. This
challenge relies on the regulatory exclusion from time-in-grade restrictions that is
stated in section 300.603(b)(2):
Noncompetitive appointment based on a special authority in law or
Executive order (but not including transfer and reinstatement) made
5
in accordance with all requirements applicable to new appointments
under that authority.
The petitioner asserts that 5 C.F.R. part 307, Veterans Recruitment Appointments
(VRA), constitutes such an authority that excluded the application of
time-in-grade restrictions to his case. The petitioner’s reliance on the VRA is
misplaced. The appointment sought by the petitioner was not one being made by
the agency pursuant to the VRA, but one made under merit promotion procedures
which, as a veteran, he had a right to be considered for because the agency was
accepting applications from individuals outside its own workforce. 3 See 5 U.S.C.
§ 3304(f)(1).
¶8 Thus, we find that the petitioner has failed to show that the OPM regulation
at 5 C.F.R. § 300.603(a) on its face requires commission of a prohibited
personnel practice or that, as applied, the regulation has resulted in such a
violation. Accordingly, the petitioner’s request for regulation review is denied.
This is the final decision of the Merit Systems Protection Board in this
proceeding. Title 5 of the Code of Federal Regulations, section 1203.12(b)
(5 C.F.R. § 1203.12(b)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
3
In fact, the petitioner acknowledged this in his mistaken argument that his right to be
considered under section 3304(f)(1) was denied because he was found ineligible. The
application of time-in-grade restrictions that are applicable to all candidates does not
deny a veteran consideration or veterans’ preference where it is applicable. See
Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000).
6
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.