The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARL BROOKINS, DOCKET NUMBER
Petitioner, CB-1205-18-0021-U-1
v.
OFFICE OF PERSONNEL DATE: April 9, 2024
MANAGEMENT,
Agency,
and
DEPARTMENT OF THE INTERIOR,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Karl Brookins , Honolulu, Hawaii, pro se.
Katherine Brewer , Esquire, Washington, D.C., for the Office of Personnel
Management.
Deborah E. Yim , Esquire, Lakewood, Colorado, for the Department of the
Interior.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The petitioner filed a petition for review of an initial decision that
dismissed for lack of jurisdiction his appeal from the decision of the Department
of Interior (DOI) to place him on a performance improvement plan (PIP). In his
petition, the petitioner alleged that he was not only challenging the initial
decision as erroneous but also seeking review of DOI’s implementation of Office
of Personnel Management (OPM) regulations relating to performance appraisals
and “[r]equirements associated with the opportunity to demonstrate acceptable
performance.” Request File (RF), Tab 1 at 4. We consider these allegations
separately pursuant to our original jurisdiction under 5 U.S.C. § 1204(f), which
authorizes the Board to review whether an OPM regulation, either on its face or
as implemented, would require an employee to commit a prohibited personnel
practice (PPP). For the reasons set forth below, we DENY the petitioner’s
request for regulation review.
BACKGROUND
The petitioner was a Marine Fish Biologist with the National Park Service,
a DOI subagency, stationed in Fort Collins, Colorado. Brookins v. Department of
the Interior, MSPB Docket No. DE-3443-18-0140-I-1, Initial Appeal File
(0140 IAF), Tab 1 at 1. By memorandum dated January 11, 2018, DOI informed
him that he was being placed on a PIP. Id. at 8-11. On January 29, 2018, the
petitioner filed an appeal with the Board. Id. at 1-5. He alleged that, by issuing
the PIP, DOI committed PPPs because the PIP “a) significantly increased [his]
duties, responsibilities or working conditions; b) concerns education or training
expected to lead to performance evaluation; c) concerns pay and benefits; and
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d) likely qualifies as a corrective action.” Id. at 5. He further alleged that the
PIP violated various statutes, as well as OPM regulations governing performance
management and performance-based actions. Id.
In an acknowledgement order, the administrative judge advised the
petitioner that the Board generally does not have jurisdiction over the placement
of an employee on a PIP. 0140 IAF, Tab 2 at 3. The administrative judge
directed the petitioner to file evidence and argument in support of the Board’s
jurisdiction. Id. at 4. In response, the petitioner alleged that the Board had
jurisdiction over the alleged PPPs under its appellate jurisdiction, original
jurisdiction, “or both.” 0140 IAF, Tab 5 at 3. He suggested that the Board had
original jurisdiction over his allegations that the agency committed PPPs and
violated sections of OPM regulations. Id.
On March 7, 2018, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. 0140 IAF, Tab 9, Initial Decision
(0140 ID) at 1. The administrative judge noted that the Board lacks jurisdiction
over PIPs when they are not associated with a loss of grade or pay. 0140 ID at 3.
He found that the petitioner had not alleged facts falling within any of the
exceptions to this general rule. Id. The administrative judge further stated that
the petitioner’s allegations that DOI committed PPPs did not constitute an
independent source of Board jurisdiction. 0140 ID at 4. Finally, the
administrative judge addressed the petitioner’s references to various statutes and
regulations, finding that either they only apply to an employee who has been
removed or reduced in grade, which had not happened to the petitioner, or that
they did not confer Board jurisdiction independently. Id. Therefore, the
administrative judge concluded that the petitioner failed to make nonfrivolous
allegations of jurisdiction and dismissed the appeal without a hearing. 0140 ID
at 4-5. The administrative judge did not address whether the petitioner’s
allegations were sufficient to invoke the Board’s original jurisdiction to review
the implementation of OPM regulations.
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On April 10, 2018, the petitioner filed a petition for review of the initial
decision asserting that the administrative judge erred in dismissing his appeal for
lack of jurisdiction. We addressed those arguments in a separate final decision in
Brookins v. Department of the Interior, MSPB Docket No. DE-3443-18-0140-I-1,
Final Order (Jan. 18, 2023). Here, we focus solely on the petitioner’s allegations
invoking our original jurisdiction under 5 U.S.C. § 1204(f). Specifically, the
petitioner states that he wishes to challenge DOI’s implementation of OPM
regulations through “[r]equirements associated with the opportunity to
demonstrate acceptable performance.” RF, Tab 1 at 4. He states that the OPM
regulations at issue are 5 C.F.R. parts 430 and 432. Id. at 4. He further “alleges
that the Requirements imposed by the Agency were the result of violating
Performance Appraisal System and Program regulations and laws; these are
violations that are also a prohibited personnel practice.” Id. at 9.
In its response, OPM states that the petitioner’s discussion of OPM
regulations “is almost indecipherable.” RF, Tab 4 at 5. OPM states that, at most,
the petitioner is challenging the regulation as applied by DOI rather than the
regulation itself. Id. at 7. OPM notes that the petitioner has not identified the
PPP at issue and therefore asserts that the Board should deny the petitioner’s
request for regulation review. Id. at 7-8. In its response, DOI states only that it
concurs with OPM. RF, Tab 5 at 4. The petitioner filed a reply in which he
agrees that he is seeking to raise an “as applied” challenge, but he does not
address the specific PPP at issue. RF, Tab 6 at 5.
ANALYSIS
The Board has original jurisdiction to review rules and regulations
promulgated by OPM. 5 U.S.C. § 1204(f). In exercising its jurisdiction, the
Board is authorized to declare an OPM rule or regulation invalid on its face if the
Board determines that such provision would, if implemented by any agency, on
its face, require any employee to commit a PPP as defined by 5 U.S.C. § 2302(b).
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5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has the authority to determine that
an OPM regulation has been invalidly implemented by an agency if the Board
determines that such provision, as it has been implemented by the agency through
any personnel action taken by the agency or through any policy adopted by the
agency in conformity with such provision, has required any employee to commit a
PPP. 5 U.S.C. § 1204(f)(2)(B); see Prewitt v. Merit Systems Protection Board,
133 F.3d 885, 887 (Fed. Cir. 1998).
The Board’s regulations direct the individual requesting review to provide
the following information: the requester’s name, address, and signature; a
citation identifying the regulation being challenged; a statement (along with any
relevant documents) describing in detail the reasons why the regulation would
require an employee to commit a PPP, or the reasons why the implementation of
the regulation requires an employee to commit a PPP; specific identification of
the PPP at issue; and a description of the action the requester would like the
Board to take. 5 C.F.R. § 1203.11(b); see Di Jorio v. Office of Personnel
Management, 54 M.S.P.R. 498, 500 (1992).
Here, the petitioner states he is challenging DOI’s implementation of OPM
regulations, and he identifies 5 C.F.R. parts 430 and 432 as the OPM regulations
at issue. RF, Tab 1 at 4. However, the only provision that the petitioner
specifically mentions is 5 C.F.R. § 430.203. RF, Tab 1 at 6, 8. He states that
DOI “misuse[d]” the “§ 430.203 critical element term.” RF, Tab 1 at 8.
Section 430.203 defines “critical element” as “a work assignment or
responsibility of such importance that unacceptable performance on the element
would result in a determination that an employee’s overall performance is
unacceptable.” He also generally asserts that DOI misapplied OPM regulations
related to performance appraisals and “[r]equirements associated with the
opportunity to demonstrate acceptable performance.” RF, Tab 1 at 4.
The petitioner, however, has failed to provide reasons explaining why
DOI’s purportedly incorrect application of 5 C.F.R. parts 430 and 432 requires an
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employee to commit a PPP. Moreover, the petitioner has not specifically
identified the PPP at issue. In the absence of such allegations, the petitioner has
not met his burden under 5 C.F.R. § 1203.11(b). See Garcia v. Office of
Personnel Management, 109 M.S.P.R. 266, ¶ 6 (2008) (where a petitioner fails to
explain how a regulation requires the commission of a PPP or fails to identify the
PPP at issue, the Board has denied the regulation review request).
ORDER
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)).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.