National Association of Government Inspectors, Unit 1 v. OPM & Department of the Navy ( 2014 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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
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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
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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.
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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
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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.