The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAKHMATULLA ASATOV, DOCKET NUMBER
Petitioner, CB-1205-15-0039-U-1
v.
OFFICE OF PERSONNEL DATE: May 6, 2016
MANAGEMENT,
Agency,
and
AGENCY FOR INTERNATIONAL
DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rakhmatulla Asatov, Plainville, Connecticut, pro se.
Julie Ferguson Queen, Washington, D.C., for the Office of Personnel
Management.
Frank Max Walsh, Esquire, Washington, D.C., for the Agency for
International Development.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The petitioner asks the Board to review regulations of the Office of
Personnel Management (OPM), which he contends are invalid on their face or as
applied to him by the Agency for International Development (AID). For the
reasons discussed below, we find that the petitioner has failed to state a claim of
facial invalidity within the Board’s regulation review jurisdiction and we decline
to review the petitioner’s invalid implementation claim.
DISCUSSION
¶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, if implemented by an agency, would on its face require any employee
to commit a prohibited personnel practice as defined by 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
commit a prohibited personnel practice. 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 has required, 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, ¶ 7 (2012); DiJorio v. Office of
Personnel Management, 54 M.S.P.R. 498, 500 (1992). This information is
required to state a case within the Board’s jurisdiction. 5 C.F.R. § 1203.11(b)(1).
3
¶4 The regulations challenged by the petitioner are 5 C.F.R. § 332.406(e) and
5 C.F.R. parts 1 and 211. Regulation Review File (RRF), Tab 1 at 8, Tab 5 at 3.
Regarding the first provision, the petitioner contends that section 332.406(e) is
invalid on its face because it allows employees to avoid compliance with 5 U.S.C.
§ 2302(b)(11), which prohibits taking an action that would result in violating a
veterans’ preference requirement (or failing to take an action where such failure
would have that result). The petitioner alleges that the regulation has this effect
as to the requirements in 5 U.S.C. § 3318(b) concerning an appointing agency’s
passing over of a preference‑eligible veteran on a certificate of eligibles for a
position to select an individual who is not preference eligible. The statute
requires that an agency must request approval by OPM of its reasons for the pass
over of a preference eligible and must comply with OPM’s findings concerning
the sufficiency of those reasons. 2 The petitioner also contends that this regulation
has been invalidly implemented by AID in passing over preference eligibles on a
certificate for inadequate reasons—in his case, on the basis of his failure to meet
educational requirements. 3 RRF, Tab 1 at 8.
¶5 5 C.F.R. § 332.406 (Objections to eligibles) is a regulation implementing
section 3318(b). Section 332.406(c) states that OPM or an agency with delegated
authority must find that the sufficiency of the reasons for a pass over is supported
by the evidence submitted before an agency may pass over a preference eligible.
Section 332.406(d) provides that the agency may not make a selection of another
individual for the position until a final ruling on its request for a pass over of the
2
In the case of a preference eligible with a compensable service-connected disability of
30% or more, the statute also requires the agency to notify the preference eligible of the
reasons for the proposed pass over and of his right to respond to such reasons to OPM
within 15 days of the notification. 5 U.S.C. § 3318(b)(2).
3
The petitioner attached the decision in his appeal under the Uniformed Services
Employment and Reemployment Rights Act, which rejected his claim that his
nonselection by AID for failure to meet educational requirements discriminated against
him based on his military status. Asatov v. Agency for International Development,
MSPB Docket No. PH‑43324-13-0150-I‑1, Initial Decision (Apr. 18, 2013).
4
preference eligible is granted. The regulation cited by the petitioner,
section 332.406(e), provides:
Applicability of paragraphs (c) and (d). Paragraphs (c) and (d) of
this section do not apply if the agency has more than one position to
fill from the same certificate and holds open (in the event the
objection is not sustained or the pass over request is denied) a
position that could be filled by the individual against whom an
objection or a pass over request has been filed.
(emphasis added). The petitioner has met the requirement that he identify a
specific prohibited personnel practice (section 3202(b)(11)), which he apparently
contends the challenged regulation requires an employee to commit. 4 However,
the petitioner has not described in detail how section 332.406(e) would require
such a violation. The evident purpose of the regulation is to permit the agency to
fill some positions while ensuring that a position remains open to protect the
rights of the preference eligible to a selection, should the agency’s request for a
pass over be denied. Because the petitioner has not explained how the regulation
would have the opposite effect of denying veterans’ preference, he has failed to
state a claim of facial invalidity within the Board’s jurisdiction under 5 U.S.C.
§ 1204(f).
¶6 As noted above, the petitioner also alleges that AID has invalidly
implemented both section 332.406(e) and 5 C.F.R. parts 1 and 211 because it
passed him over for failure to meet educational requirements for the position he
sought. RRF, Tab 1, Tab 5. The Board’s authority to grant a petition for
regulation review is discretionary, and the Board has established prudential
criteria for declining to exercise its discretion. See McDiarmid v U.S. Fish &
Wildlife Service, 19 M.S.P.R. 347, 349 (1984). Two of these criteria provide a
clear basis for denying review of the petitioner’s challenge to the agency’s
implementation of these regulations: the likelihood that a given issue will be
4
The petitioner’s request for review stated that the regulation “allows” violations of
section 2302(b)(11), an assertion which is less than the statute requires. We will give
him the benefit of the doubt and assume he intended to allege the statutory standard.
5
reached in a timely fashion through ordinary channels of review and the
availability of other equivalent remedies. Id. The petitioner in fact has already
filed another Board appeal under the Veterans’ Employment Opportunity Act in
which he challenged the same nonselection by AID in dispute here and in which
he raised the same issue, whether the agency’s action violated the pass over
requirements of 5 U.S.C. § 3318(b). 5 Thus, the issue raised was actually
addressed, 6 and had the petitioner prevailed he could have obtained any remedy
available in a regulation review proceeding. Accordingly, the Board finds it
appropriate to exercise its discretion not to review the petitioner’s invalid
implementation claim.
¶7 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)).
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
5
Although the specific regulations cited by the petitioner here were not addressed in his
Board appeal, the underlying issue in both cases is the petitioner’s claim that the agency
violated the pass over requirements of section 3318(b) and therefore committed a
violation of section 2302(b)(11). The regulations cited by the petitioner here add
nothing to his veterans’ preference claim.
6
The Board denied the petitioner’s request for corrective action, and its decision was
affirmed on his appeal to the U.S. Court of Appeals for the Federal Circuit. See Asatov
v. Agency for International Development, MSPB Docket No. PH-3330-12-0145-I‑1,
Final Order (Jan. 2, 2013), aff’d, 542 F. App’x 937 (Fed. Cir. 2013).