UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATIONAL ASSOCIATION OF 

GOVERNMENT INSPECTORS, 

UNIT 1,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency,

and

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

CB-1205-13-0017-U-1

DATE: August 14, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

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.

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 

 2 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board