UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAKHMATULLA ASATOV,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency, 

and

DEPARTMENT OF HOMELAND 

SECURITY, 

Agency.

DOCKET NUMBER

CB-1205-15-0013-U-1

DATE: September 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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. §§ 300.7012 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board

 

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.