The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAKHMATULLA ASATOV, DOCKET NUMBER
Petitioner, CB-1205-16-0004-U-1
v.
OFFICE OF PERSONNEL DATE: May 13, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Rakhmatulla Asatov, Plainville, Connecticut, pro se.
Julie Ferguson Queen, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The petitioner asks the Board to review an Office of Personnel Management
(OPM) regulation, 5 C.F.R. § 211.102, which provides definitions for terms used
in the application of veterans’ preference in Federal employment. Regulation
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Review File (RRF), Tab 1 at 5. For the reasons discussed below, we DENY the
petitioner’s request. 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)).
BACKGROUND
¶2 The petitioner contends that 5 C.F.R. § 211.102, which provides definitions
for terms used in the application of veterans’ preference in Federal employment,
is invalid on its face because it fails to define the specific term “veterans [sic]
preference.” RRF, Tab 1 at 5. He further contends that the regulation is invalid
as implemented by the Board through the Board’s issuance of 5 C.F.R. § 1201.56,
which, among other things, addresses an appellant’s burden of proof in appeals
brought pursuant to the Veterans Employment Opportunity Act of 1998. Id.
¶3 OPM raises multiple objections to the petitioner’s request. OPM argues
that: (1) the Board lacks jurisdiction to review the challenged regulation; (2) the
petitioner fails to state a claim regarding the Board’s implementation of the
regulation; (3) the petitioner’s challenge fails to meet the Board’s regulatory
criteria for review; and (4) the petitioner’s challenge fails to meet the Board’s
prudential criteria for review. RRF, Tab 4 at 5‑9.
¶4 The petitioner’s response does not meaningfully address the agency’s
arguments. RRF, Tab 5.
ANALYSIS
¶5 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, on its face, require any employee
to violate 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
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determines that the provision, as implemented, has required any employee to
commit a prohibited personnel practice. 5 U.S.C. § 1204(f)(2)(B).
¶6 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 requires, 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).
¶7 Concerning his claim that 5 C.F.R. § 211.102 is invalid on its face, as noted
by OPM, the petitioner has not explained why he believes the regulation requires
any employee to commit a prohibited personnel practice. The petitioner also
has not identified any specific prohibited practice that the regulation requires, nor
has he stated what action he would like the Board to take. Thus, the petitioner
has not satisfied the Board’s criteria for regulatory review and has failed to state
a claim under 5 U.S.C. § 1204(f).
¶8 Regarding his claim that the regulation is invalid as implemented, the
petitioner appears to be challenging the Board’s implementation of the regulation
via its issuance of a separate regulation, 5 C.F.R. § 1201.56. However, these two
regulations are wholly unrelated to one another, and the petitioner has not
provided any explanation as to how the Board’s issuance of 5 C.F.R. § 1201.56
acts as an implementation of 5 C.F.R. § 211.102. As such, the petitioner has
failed to describe in detail the reasons why implementation of the regulation
would require an employee to commit a prohibited personnel practice, and has
therefore not satisfied the Board’s criteria for regulatory review.
¶9 Accordingly, the petitioner’s request for regulation review is denied.
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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
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 United States 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
United States 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
C i r c u i t . T h e
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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.