                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


RAKHMATULLA ASATOV,                             DOCKET NUMBER
            Petitioner,                         CB-1205-15-0039-U-1

             v.

OFFICE OF PERSONNEL                             DATE: May 6, 2016
  MANAGEMENT,
              Agency,
          and
AGENCY FOR INTERNATIONAL
DEVELOPMENT,
              Agency.




        THIS FINAL ORDER IS NONPRECEDENTIAL 1

      Rakhmatulla Asatov, Plainville, Connecticut, pro se.

      Julie Ferguson Queen, Washington, D.C., for the Office of Personnel
        Management.

      Frank Max Walsh, Esquire, Washington, D.C., for the Agency for
        International Development.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, 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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 regulations of the Office of
     Personnel Management (OPM), which he contends are invalid on their face or as
     applied to him by the Agency for International Development (AID).          For the
     reasons discussed below, we find that the petitioner has failed to state a claim of
     facial invalidity within the Board’s regulation review jurisdiction and we decline
     to review the petitioner’s invalid implementation claim.

                                       DISCUSSION
¶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, if implemented by an agency, would 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).
¶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); 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).
                                                                                             3

¶4         The regulations challenged by the petitioner are 5 C.F.R. § 332.406(e) and
     5 C.F.R. parts 1 and 211. Regulation Review File (RRF), Tab 1 at 8, Tab 5 at 3.
     Regarding the first provision, the petitioner contends that section 332.406(e) is
     invalid on its face because it allows employees to avoid compliance with 5 U.S.C.
     § 2302(b)(11), which prohibits taking an action that would result in violating a
     veterans’ preference requirement (or failing to take an action where such failure
     would have that result). The petitioner alleges that the regulation has this effect
     as to the requirements in 5 U.S.C. § 3318(b) concerning an appointing agency’s
     passing over of a preference‑eligible veteran on a certificate of eligibles for a
     position to select an individual who is not preference eligible.             The statute
     requires that an agency must request approval by OPM of its reasons for the pass
     over of a preference eligible and must comply with OPM’s findings concerning
     the sufficiency of those reasons. 2 The petitioner also contends that this regulation
     has been invalidly implemented by AID in passing over preference eligibles on a
     certificate for inadequate reasons—in his case, on the basis of his failure to meet
     educational requirements. 3 RRF, Tab 1 at 8.
¶5         5 C.F.R. § 332.406 (Objections to eligibles) is a regulation implementing
     section 3318(b). Section 332.406(c) states that OPM or an agency with delegated
     authority must find that the sufficiency of the reasons for a pass over is supported
     by the evidence submitted before an agency may pass over a preference eligible.
     Section 332.406(d) provides that the agency may not make a selection of another
     individual for the position until a final ruling on its request for a pass over of the

     2
       In the case of a preference eligible with a compensable service-connected disability of
     30% or more, the statute also requires the agency to notify the preference eligible of the
     reasons for the proposed pass over and of his right to respond to such reasons to OPM
     within 15 days of the notification. 5 U.S.C. § 3318(b)(2).
     3
       The petitioner attached the decision in his appeal under the Uniformed Services
     Employment and Reemployment Rights Act, which rejected his claim that his
     nonselection by AID for failure to meet educational requirements discriminated against
     him based on his military status. Asatov v. Agency for International Development,
     MSPB Docket No. PH‑43324-13-0150-I‑1, Initial Decision (Apr. 18, 2013).
                                                                                          4

     preference eligible is granted.        The regulation cited by the petitioner,
     section 332.406(e), provides:
           Applicability of paragraphs (c) and (d). Paragraphs (c) and (d) of
           this section do not apply if the agency has more than one position to
           fill from the same certificate and holds open (in the event the
           objection is not sustained or the pass over request is denied) a
           position that could be filled by the individual against whom an
           objection or a pass over request has been filed.
     (emphasis added).     The petitioner has met the requirement that he identify a
     specific prohibited personnel practice (section 3202(b)(11)), which he apparently
     contends the challenged regulation requires an employee to commit. 4 However,
     the petitioner has not described in detail how section 332.406(e) would require
     such a violation. The evident purpose of the regulation is to permit the agency to
     fill some positions while ensuring that a position remains open to protect the
     rights of the preference eligible to a selection, should the agency’s request for a
     pass over be denied. Because the petitioner has not explained how the regulation
     would have the opposite effect of denying veterans’ preference, he has failed to
     state a claim of facial invalidity within the Board’s jurisdiction under 5 U.S.C.
     § 1204(f).
¶6         As noted above, the petitioner also alleges that AID has invalidly
     implemented both section 332.406(e) and 5 C.F.R. parts 1 and 211 because it
     passed him over for failure to meet educational requirements for the position he
     sought.   RRF, Tab 1, Tab 5.       The Board’s authority to grant a petition for
     regulation review is discretionary, and the Board has established prudential
     criteria for declining to exercise its discretion. See McDiarmid v U.S. Fish &
     Wildlife Service, 19 M.S.P.R. 347, 349 (1984). Two of these criteria provide a
     clear basis for denying review of the petitioner’s challenge to the agency’s
     implementation of these regulations: the likelihood that a given issue will be

     4
       The petitioner’s request for review stated that the regulation “allows” violations of
     section 2302(b)(11), an assertion which is less than the statute requires. We will give
     him the benefit of the doubt and assume he intended to allege the statutory standard.
                                                                                             5

     reached in a timely fashion through ordinary channels of review and the
     availability of other equivalent remedies. Id. The petitioner in fact has already
     filed another Board appeal under the Veterans’ Employment Opportunity Act in
     which he challenged the same nonselection by AID in dispute here and in which
     he raised the same issue, whether the agency’s action violated the pass over
     requirements of 5 U.S.C. § 3318(b). 5         Thus, the issue raised was actually
     addressed, 6 and had the petitioner prevailed he could have obtained any remedy
     available in a regulation review proceeding.         Accordingly, the Board finds it
     appropriate to exercise its discretion not to review the petitioner’s invalid
     implementation claim.
¶7         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.




     5
      Although the specific regulations cited by the petitioner here were not addressed in his
     Board appeal, the underlying issue in both cases is the petitioner’s claim that the agency
     violated the pass over requirements of section 3318(b) and therefore committed a
     violation of section 2302(b)(11). The regulations cited by the petitioner here add
     nothing to his veterans’ preference claim.
     6
       The Board denied the petitioner’s request for corrective action, and its decision was
     affirmed on his appeal to the U.S. Court of Appeals for the Federal Circuit. See Asatov
     v. Agency for International Development, MSPB Docket No. PH-3330-12-0145-I‑1,
     Final Order (Jan. 2, 2013), aff’d, 542 F. App’x 937 (Fed. Cir. 2013).
