                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


NATIONAL ASSOCIATION OF                         DOCKET NUMBER
  GOVERNMENT INSPECTORS,                        CB-1205-13-0017-U-1
  UNIT 1,
             Petitioner,

             v.                                 DATE: August 14, 2014

OFFICE OF PERSONNEL
  MANAGEMENT,
              Agency,

             and

DEPARTMENT OF THE NAVY,
            Agency.




        THIS FINAL ORDER IS NONPRECEDENTIAL 1

      Thomas A. Delegal, III, Jacksonville, Florida, for the petitioner.

      Henry F. Sonday, Jr., Jacksonville, Florida, for the agency.

      Michelle L. Perry, Esquire, Washington, D.C., for the agency.




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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                 Susan Tsui Grundmann, Chairman
                                 Anne M. Wagner, Vice Chairman
                                    Mark A. Robbins, Member


                                        FINAL ORDER

¶1         The petitioner asks the Board to review the Department of the Navy’s
     (Navy’s) employment practices regarding promotions to the position of
     Supervisory Quality Assurance Specialist. MSPB Docket No. CB-1205-13-0017-
     U-1, Request File (RF) Tab 3 at 4. For the reasons discussed below, we DENY
     the petitioner’s request.

                                         DISCUSSION
¶2         The petitioner originally filed its claim as an employment practice appeal
     pursuant to 5 C.F.R. § 300.104, which the administrative judge denied on
     December 20, 2012.      MSPB Docket No. AT-300A-13-0035-I-1, Initial Appeal
     File, Tab 9, Initial Decision (ID). The administrative judge found that the Office
     of Personnel Management (OPM) was not involved in the practice about which
     the petitioner complained, and therefore the petitioner failed to state a claim
     within the Board’s jurisdiction. ID at 2. The administrative judge forwarded the
     petitioner’s claim to the Board for docketing as a regulation review request
     pursuant to 5 U.S.C. § 1204(f)(2)(B). ID at 3.
¶3         The petitioner alleges that the Navy failed to comply with OPM’s
     employment practice regulations. RF, Tab 3 at 4. Specifically, the petitioner
     claims that the Navy violated OPM’s regulations when making promotions to the
     position of Supervisory Quality Assurance Specialist by: (1) failing to create a
     job analysis identifying the basic duties and responsibilities of the position, the
     knowledge, skills, and abilities required for the position, and factors important to
                                                                                        3

     evaluating candidates for the position, in violation of 5 C.F.R. § 300.103(a); and
     (2) creating promotional requirements 2 not sanctioned by OPM, in violation of
     5 U.S.C. § 3308. RF, Tab 3 at 5-6. The petitioner claims that the newly-created
     promotional requirements violate the following merit principles: 5 U.S.C.
     §§ 2301(b)(1) (“selection and advancement should be determined solely on the
     basis of relative ability, knowledge, and skills, after fair and open competition
     which assures that all receive equal opportunity”); 2301(b)(2) (discrimination on
     the basis of age because the process requires the preference for recency of
     supervisory experience); 2301(b)(8) (employees are not protected from arbitrary
     actions taken for partisan political purposes). RF, Tab 3 at 6-7. In addition, the
     petitioner claims that the promotional requirements constitute a prohibited
     personnel practice under section 2302(b)(4) (the process fails to comply with
     standards created by statute and rule, and deceives or willfully obstructs
     employees in their rights to compete for employment promotion). RF, Tab 3 at
     6-7.
¶4          The Navy contends that the Board should deny the request because the
     petitioner fails to identify which OPM regulation it challenges or state how the
     OPM regulation or its implementation would require an employee to commit a
     prohibited personnel practice. RF, Tab 7 at 2. OPM moves to dismiss the request
     for regulation review on the ground that the petitioner fails to identify an OPM
     regulation that requires an employee to commit a prohibited personnel practice or
     to challenge any OPM action.       RF, Tab 10 at 6.     In its reply, the petitioner
     concedes that it is not challenging an OPM regulation; rather, it alleges that the




     2
       The petitioner identifies the following newly-created promotional requirements:
     “knowledge, skills and abilities in applying Continuing Process Improvement
     methodologies and use of associated tools [] (i.e. AIRspeed, Lean, Six-Sigma, Theory
     of Constraints, 4 Disciplines of Execution [sic])”; “‘green belt’ certification”; and
     recency of supervisory experience. RF, Tab 3 at 7-8.
                                                                                       4

     Navy failed to comply with valid OPM requirements. RF, Tab 15 at 4-5. On this
     basis, it agrees that the Board should dismiss OPM as a party. Id. at 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, if implemented by an agency, would 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).
¶6         The Board’s regulations direct the individual or entity 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         Here, the petitioner fails to identify an OPM regulation that it contends has
     required or would require an employee to commit a prohibited personnel practice.
     The petitioner does not contend that OPM’s employment practice regulations are
     invalid or require employees to commit a prohibited personnel practice; rather, it
     contends that the agency has failed to comply with valid OPM regulations
     because the agency added requirements not found in the regulations. Thus, far
                                                                                 5

from asking the Board to invalidate OPM’s regulations, the petitioner seeks to
have the Board enforce them. But such enforcement is outside the scope of a
regulation review request pursuant to section 1204(f). The petitioner’s request is
properly characterized either as an employment practice claim pursuant to
5 C.F.R. § 300.104 (which, as explained above, the Board previously denied), or
a prohibited personnel practice claim within the jurisdiction of the Office of
Special Counsel, see 5 C.F.R. § 1800.1(a)(12), (c). We therefore find that the
petitioner has not articulated a regulation review claim that is within the Board’s
jurisdiction under 5 U.S.C. § 1204(f). DiJorio, 54 M.S.P.R. at 500. 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:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
