The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAKHMATULLA ASATOV, DOCKET NUMBER
Petitioner, CB-1205-15-0038-U-1
v.
OFFICE OF PERSONNEL DATE: May 13, 2016
MANAGEMENT,
and
NATIONAL RAILROAD
PASSENGER CORPORATION,
Agencies.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Rakhmatulla Asatov, Plainville, Connecticut, pro se.
Julie Ferguson Queen, Washington, D.C., for the Office of Personnel
Management.
Keren Rabin, Washington, D.C., for the National Railroad Passenger
Corporation.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. See
Asatov v. Office of Personnel Management and National Railroad Passenger
Corporation, MSPB Docket No. CB-1205-15-0038-U-1, Regulation Review File
(RRF), Tab 1 at 8. 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 requests the Board to review an OPM regulation in title 5,
part 211. The regulation, 5 C.F.R. § 211.101, provides, “[t]he purpose of this
part is to define veterans’ preference and the administration of preference in
Federal employment.” The petitioner contends that the regulation is invalid on its
face because it limits the application of veterans’ preference to Federal
employment, thereby impermissibly excluding other establishments created by
Acts of Congress, such as the National Railroad Passenger Corporation (Amtrak).
RRF, Tab 1 at 8. As a result, per the petitioner, the regulation’s limitation caused
Amtrak to commit a practice prohibited by 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. Id.
¶3 Amtrak interprets the petitioner’s request as an attempt to relitigate his
previous appeal before the Board, in which he alleged that Amtrak violated the
Veterans Employment Opportunities Act of 1998 (VEOA) when it failed to select
him for a position with its Office of Inspector General (OIG). RRF, Tab 4; see
Asatov v. National Railroad Passenger Corporation, MSPB Docket No. PH-3330-
14-0819-I-1, Initial Decision (Nov. 14, 2014). In that appeal, the administrative
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judge dismissed the petitioner’s appeal for lack of jurisdiction, holding that
neither Amtrak nor the Amtrak OIG were Federal agencies within the meaning of
VEOA. Id. at 5‑11.
¶4 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’s challenge fails to meet the Board’s regulatory criteria for review; and
(3) the petitioner’s challenge fails to meet the Board’s prudential criteria for
review. RRF, Tab 8 at 6‑9.
¶5 The petitioner’s response does not meaningfully address the agencies’
arguments. See RRF, Tab 9.
ANALYSIS
¶6 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 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).
¶7 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
4
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).
¶8 The petitioner’s description of the reasons why the regulation requires or
has required a violation of section 2302(b)(11) is based on an incorrect
interpretation of the plain language of the regulation. The regulation states that
its purpose is to provide definitions for veterans’ preference as it is used in
Federal employment. See 5 C.F.R. § 211.101. There is no language stating that it
is limiting the application of veterans’ preference to Federal employment. Id.
¶9 More importantly, the petitioner’s claim fails because he does not show how
the challenged regulation requires an individual to commit a prohibited personnel
practice. The prohibitions within 5 U.S.C. § 2302 are limited to employees of an
“agency,” which is defined in that section as an Executive agency and the
Government Printing Office. 5 U.S.C. § 2302(a)(2)(C). As such, any individual
not falling within one of those two categories, including all non-Federal
employees, cannot commit a prohibited personnel practice as defined by
section 2302. Id. Therefore, even if the petitioner’s interpretation of the
regulation was correct, the regulation’s limitation would not require a
non-Federal employee to commit a prohibited personnel practice as defined by
section 2302, because a non-Federal employee cannot do so.
¶10 Thus, the petitioner has failed to show that the OPM regulation at 5 C.F.R.
§ 211.101 on its face requires commission of a prohibited personnel practice.
Accordingly, the petitioner’s request for regulation review is denied.
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:
5
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 Circuit. The
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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.