Rakhmatulla Asatov v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAKHMATULLA ASATOV, DOCKET NUMBER
Petitioner, CB-1205-15-0013-U-1
v.
OFFICE OF PERSONNEL DATE: September 9, 2015
MANAGEMENT,
Agency,
and
DEPARTMENT OF HOMELAND
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rakhmatulla Asatov, Plainville, Connecticut, pro se.
Robert J. Girouard, Washington, D.C., for the Office of Personnel
Management.
Caroline E. Andes and Holly A. Yurasek, Washington, D.C., for the
Department of Homeland Security.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
¶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 and as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
applied to him by the Department of Homeland Security (DHS). For the reasons
discussed below, we find that the petitioner has failed to state a claim within the
Board’s regulation review jurisdiction.
DISCUSSION
¶2 The Board has original jurisdiction to review rules and regulations
promulgated by OPM pursuant to 5 U.S.C. § 1204(f). The statute authorizes the
Board 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 in violation of a provision
of 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 in violation of
that statute. See 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 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, 17, ¶ 7 (2012); DiJorio v. Office of Personnel
Management, 54 M.S.P.R. 498, 500 (1992). This information is required to state
a claim within the Board’s regulation review jurisdiction. 5 C.F.R.
§ 1203.11(b)(1).
¶4 The petitioner stated his request for a regulation review as follows:
The Customs and Border Protection committed a personnel practice
prohibited by 5 U.S.C. 2302(b)(1)(A) by discriminately [sic]
applying a provision of 5 CFR 300.701(a) to me, a male applicant for
3
its CPB Officer position, while apparently waiving that requirement
to female applicants, because OPM impermissible [sic] defined a
“covered individual” as “a male” in 5 CFR 300.703, while the statute
it implemented has a gender neutral language of “an individual”
subject to the same requirement. See 5 CFR 300.701. The Board has
a jurisdiction to review the OPM regulation under 5 USC
1204(f)(1)(B) and 5 CFR 1201.11.
Regulation Review File (RRF), Tab 1 at 5. The petitioner has identified the OPM
regulations that he is challenging as 5 C.F.R. §§ 300.701 2 and 300.703,
regulations in 5 C.F.R. Part 300, Subpart G, “Statutory Bar to Appointment of
Persons Who Fail To Register Under Selective Service Law.” Section 300.701,
“Statutory requirement,” states verbatim the provisions of 5 U.S.C. § 3328;
section 300.703, “Definitions,” defines an individual covered by Subpart G as,
inter alia, “a male (a) whose application for appointment is under consideration
by an executive agency.” The petitioner also identifies the specific prohibited
personnel practice at issue as discrimination on the basis of sex in violation
of 5 U.S.C. § 2302(b)(1)(A). The petitioner asserts that the regulations have been
applied to him as an applicant for employment by Customs and Border Protection
(CBP), a sub-agency of DHS, which found him ineligible for appointment. 3 The
petitioner asserts that the regulation, on its face and as implemented by the CBP,
required a violation of section 2302(b)(1)(A). The petitioner has not explicitly
described what he wants the Board to do.
2
Section 300.701 has no subsections.
3
Prior to finding him ineligible, the CBP informed the petitioner that he was ineligible
to continue the preemployment process unless he submitted a Status Information Letter
from the Selective Service System showing that he registered under Selective Service
law, was exempt from registering, or his failure to register was neither knowing nor
willful, as determined by OPM. RRF, Tab 1 at 12. The agency notified the petitioner
that failure to provide the requested documentation would result in the withdrawal of its
tentative offer of a position without further notice. Id.
4
¶5 The defect in the petitioner’s request is that OPM’s regulations merely
state what the statute that they implement provides. Section 300.701 reproduces
verbatim 5 U.S.C. § 3328(a), which states:
(a) An individual -
(1) Who was born after December 31, 1959, and is or was required to
register under section 3 of the Military Selective Service Act (50
U.S.C. App. 453); and
(2) Who is not so registered or knowingly and willfully failed to
register before his requirement terminated or became inapplicable to
the individual, shall be ineligible for appointment to a position in an
executive agency of the Federal Government.
Section 3 of the Military Selective Service Act, 50 U.S.C. app. § 453, which is
referred to in section 3328(a)(1), provides:
(a) Except as otherwise provided in this title . . . it shall be the
duty of every male citizen of the United States, and every other
male person residing in the United States, who, on the day or days
fixed for the first or any subsequent registration, is between the
ages of eighteen and twenty-six, to present himself for and submit
to registration at such time or times and place or places, and in
such manner, as shall be determined by proclamation of the
President and by rules and regulations prescribed hereunder.
Petitioner mistakenly contends that the agency improperly narrowed the meaning
of “individual” in 5 U.S.C. § 3228(a) when, in 5 C.F.R. § 300.703, it defined a
“covered individual” as a “male” for purposes of OPM’s regulations
implementing the statute. An examination of the statutes shows that section 3328
incorporates by reference the limitation of the registration requirement to males
that is found in 50 U.S.C. app. § 453.
¶6 Thus, the petitioner’s challenge to OPM’s regulations is essentially a
challenge to the statutory registration requirement, and the Board has no authority
to review the validity of a statute. When an OPM regulation tracks the language
of a statute, the Board lacks jurisdiction to review a challenge to the facial
validity of that regulation. Kelly v. Office of Personnel
5
Management, 53 M.S.P.R. 511, 515-16 (1992). Nor has the petitioner alleged an
improper implementation of the statute by CBP in his case. The CBP’s
determination that the petitioner was ineligible for appointment was
straightforwardly based on the statutory requirement of male registration to which
the petitioner objects and which the Board has no authority to review. In
reviewing the application of a statute in this context, the Board can only consider
allegations based on interpretive changes between the statute and the regulation
or its implementation, which the petitioner has not made. See id. at 516. The
petitioner’s objection to the agency’s action relies on the same assertion as his
challenge to the statute on its face and must be rejected as a challenge to the
statute beyond the Board’s jurisdiction. 4
ORDER
¶7 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.
4
Although informed of his right to do so, the petitioner did not file a reply to the
responses to his request that were filed by OPM and DHS. Instead, he filed four
additional requests for review of the facial validity of other OPM regulations and their
implementation by other agencies. RRF, Tabs 10-12, 14. These requests, which raise
additional issues and a different prohibited personnel practice, will be docketed by the
Clerk of the Board as separate regulation review requests with opportunities for the
named agencies to respond.