UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAKHMATULLA ASATOV,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency, 

and 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT,

Agency.

DOCKET NUMBER

CB-1205-15-0039-U-1

DATE: May 6, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board

 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).