The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER ANDREW MCMILLAN, DOCKET NUMBER
Petitioner, CB-1205-15-0005-U-1
v.
OFFICE OF PERSONNEL DATE: October 19, 2022
MANAGEMENT,
Agency,
and
DEPARTMENT OF JUSTICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Peter Andrew McMillan, Bayamon, Puerto Rico, pro se.
R. Alan Miller, Washington, D.C., for the Office of Personnel
Management.
Marcia N. Tiersky, Springfield, Virginia, for the Department of Justice.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 the implementation of a regulation
of the Office of Personnel Management (OPM) by the Department of Justice,
Drug Enforcement Administration (DEA or agency), which the petitioner alleges
required the commission of a prohibited personnel practice and to which he
alleges he has been subjected. For the reasons discussed below, we DISMISS the
petitioner’s request for lack of jurisdiction.
ANALYSIS
¶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 commit a
prohibited personnel practice as defined by 5 U.S.C. § 2302(b). 5 U.S.C.
§ 1204(f)(2)(A). Similarly, the Board has authority to declare an OPM regulation
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); Di Jorio v. Office of
Personnel Management, 54 M.S.P.R. 498, 500 (1992). This information is
required for the individual to be able to state a case within the Board’s
jurisdiction. 5 C.F.R. § 1203.11(b)(1).
3
¶4 Here, the petitioner challenges the DEA’s implementation of 5 C.F.R.
§ 575.209(b)(1), a regulation that repeats the statutory limit set by 5 U.S.C.
§ 5753(d)(1) on the amount of relocation incentive payments that may be paid an
employee. 2 With exceptions not applicable here, such a bonus may not exceed
25% of the annual rate of basic pay of the employee multiplied by the number of
years of the service period involved. The statute and regulation authori ze
payment by either a single lump sum or by annual installments throughout the
service period. 5 U.S.C. § 5753(d)(2); 5 C.F.R. § 575.209(a). The petitioner
contends that the agency erroneously paid him only 25% of one year’s basic pay
for a 3-year period of service and thereby committed a prohibited personnel
practice under 5 U.S.C. § 2302(b)(12) by violating a statute or regulation that
implements or directly concerns a merit system principle. 3 Regulation Review
File (RRF), Tabs 1, 11. As explained below, the petitioner has not stated a claim
within the Board’s regulation review jurisdiction, and therefore we dismiss his
request for review.
2
5 C.F.R. § 575.209(b)(1) states:
Except as provided in paragraph (c) of this section, the tot al amount of relocation
incentive payments paid to an employee in a service period may not exceed
25 percent of the annual rate of basic pay of the employee at the beginning of the
service period multiplied by the number of years (including fractions of a year) in
the service period (not to exceed 4 years).
5 U.S.C. § 5753(d)(1) states:
Except as provided in subsection (e), a bonus under this section shall not exceed
25 percent of the annual rate of basic pay of the employee at the beginning of the
service period multiplied by the number of years (including a fractional part of a
year, as determined under regulations of [OPM]) in the required service period of
the employee involved.
3
The petitioner also asserted that the DEA’s implementation of the regulation retaliated
against him by violating 5 U.S.C. § 2302(b)(8) and (9). However, he alleged no
protected disclosures or protected activity on his part prior to receipt of the disputed
relocation payment that could have been a basis for the alleged reprisal.
4
¶5 The petitioner received a relocation incentive payment for a 3 -year term of
service in Puerto Rico from January 1, 2012, until January 10, 2015. The
Relocation Incentive Service Agreement signed by the petitioner on February 7,
2012, indicated that he received a lump sum incentive payment of $24,546.75,
which was 25% of his annual basic pay. RRF, Tab 7 at 14-16. The petitioner
contends that the DEA’s payment was an erroneous imple mentation of the
regulation because the agency was required to pay him this amount for each year
of his 3 years of service in Puerto Rico. RRF, Tab 1 at 5.
¶6 In support of this contention, the petitioner cites the language of the statute
and OPM’s regulation as requiring the additional payments. He also states that
8 of the more than 128 individuals who were relocated by the DEA to Puerto Rico
or the Virgin Islands received three annual payments of 25% of basic pay. RRF,
Tab 11 at 5-6. According to the petitioner, the agency’s implementation of the
regulation committed a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(12) because 5 C.F.R. § 575.209(b)(1) is a regulation that implements or
directly concerns the merit system principle in 5 U.S.C. § 2301(b)(3) (“Equal pay
should be provided for work of equal value . . . and appropriate incentives and
recognition should be provided . . . [.]”). RRF, Tab 11 at 6 -7.
¶7 Regarding the petitioner’s reliance on the DEA’s payment of the maximum
allowed relocation incentive in three annual installments to a few employees
serving in the Caribbean Division, the agency concedes that this larger amount
was mistakenly paid early on to a few employees because of a short -lived
misunderstanding of a memorandum of the Administrator. However, the agency
states that after that time the corrected formula, which was used for the
petitioner’s incentive payment, has consistently been used in such payments to
other Caribbean Division employees. RRF, Tab 7 at 10. The petitioner has
acknowledged that the agency has paid the vast majority of relocated individuals
the same relocation payment that he received, but he insists that the agency has
5
violated 5 U.S.C. § 2302(b)(12) by doing so and is required to pay them the
higher amount he seeks. RRF, Tab 11 at 5.
¶8 The petitioner has not articulated a prohibited personnel practice within the
meaning of 5 U.S.C. § 2302(b)(12). Because the Civil Service Reform Act did
not intend the merit system principles to be “self -executing,” the statute requires
petitioner’s claim under this provision to identify a law, rule, or regulation
implementing or directly concerning a merit system principle that the agency’s
implementation of 5 C.F.R. § 575.209(b) violated. 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, 608-10 (1984). Without meeting this requirement, a claim that
OPM’s regulation violates a merit system principle is not sufficient. Blount v.
Office of Personnel Management, 87 M.S.P.R. 87, ¶ 3 (2000). Thus, the
petitioner’s sole reliance on the alleged improper implementation of 5 C.F.R.
§ 575.209(b)(1) without identifying the violation of such a law, rule, or regulation
does not allege a violation of 5 U.S.C. § 2302(b)(12) within the Board’s
jurisdiction under 5 U.S.C. § 1204(f). 4 The Board has no jurisdiction under the
statute to address the petitioner’s claim that the DEA has been inconsistent in
making its relocation incentive payments. 5
¶9 Thus, we find that the petitioner has failed to state a claim that the OPM
regulation at 5 C.F.R. § 575.209(b)(1) has required commission of a prohibited
personnel practice, as applied. Accordingly, the petitioner’s request for
regulation review is dismissed for lack of jurisdiction. This is the final decision
4
The petitioner is also mistaken in asserting that this regulation implements or directly
concerns the merit system principles in 5 U.S.C. § 2301(b)(3) regarding equal pay and
appropriate incentives. As noted above, the regulation does no more than state a limit
on the amount of a relocation incentive payment that an agency may ma ke.
5
As OPM noted in its submission, RRF, Tab 6 at 5, challenges to Federal agency
decisions regarding entitlement to compensation, including relocation incentives, may
be made pursuant to 31 U.S.C. § 3702(a)(2) and 5 C.F.R. part 178.
6
of the Merit Systems Protection Board in this proceedin g. Title 5 of the Code of
Federal Regulations, section 1203.12(b) (5 C.F.R. § 1203.12(b)).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.