                      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        THIS FINAL ORDER IS NONPRECEDENTIAL *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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

                                      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:
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                          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.
