UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

THOMAS L. FOREST,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency,

and

DEPARTMENT OF HOMELAND 

SECURITY, 

Agency.

DOCKET NUMBER

CB-1205-18-0013-U-1

DATE: May 22, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thomas L. Forest, Metairie, Louisiana, pro se.

Robert J. Girouard, Washington, D.C., for the Office of Personnel 

Management.

Ashley Drexel, Washington, D.C., for the Department of Homeland 

Security.

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 The petitioner asks the Board to review the implementation of a regulation 

of the Office of Personnel Management (OPM) by the Department of Homeland 

Security’s Customs and Border Protection (CBP) which the petitioner alleges 

required the commission of a prohibited personnel practice affecting him. For the 

reasons discussed below, we DISMISS the petitioner’s request for lack of 

jurisdiction. 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)).

DISCUSSION 

¶1 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 would, if implemented by an agency, require any employee to commit a 

prohibited personnel practice as defined by 5 U.S.C. § 2302(b). 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). 

¶2 The Board’s regulations direct the individual requesting review to provide 

the following information: a citation identifying the chall enged regulation; a 

 

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
3

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 for the individual to be able to state a case within the Board’s 

jurisdiction. 5 C.F.R. § 1203.11(b)(1). 

¶3 Here, the petitioner challenges the CBP’s implementation of 5 C.F.R. 

§ 338.301, an OPM regulation that governs agencies’ consideration of applicants 

for appointments to the competitive service. This provision provides that:

Agencies must ensure that employees who are given competitive 

service appointments meet the requirements included in the Office of 

Personnel Management’s Operating Manual: Qualification Standards 

for General Schedule Positions. The Operating Manual is available 

to the public for review at agency personnel offices and Federal 

depository libraries, and for purchase from the Government Printing 

Office. 

The petitioner contends that the CBP improperly evaluated his self-assessment of 

his experience in finding that he was not eligible for promotion to a position 

within his agency for which he had applied. The agency determined that his 

resume did not demonstrate 1 year of equivalent specialized experience at the 

GS-12 level, which was a minimum qualification for the GS-1801-13 

Enforcement Analysis Specialist position he sought. Regulation Review File 

(RRF), Tab 17 at 15-17. The petitioner argues principally that his nearly 2 years

of equivalent experience as a Customs and Border Protection Officer at the GS-11 

level should have been found qualifying because the position was upgraded to the 

GS-12 level after he left it. RRF, Tab 1 at 6-7.3 

 

3

In support of this contention, the petitioner cites guidance from OPM’s Classification 

& Qualifications General Schedule Qualifications Policies stating that “an employee 
4

¶4 The petitioner contends that the agency’s allegedly erroneous assessment of 

his past experience was a failure to properly implement section 338.301 and that 

CBP hiring staff thereby committed a prohibited personnel practice under 

5 U.S.C. § 2302(b)(12). This subsection of section 2302(b) prohibits taking or 

failing to take any personnel action “if the taking or failure to take suc h action 

violates any law, rule, or regulation implementing, or directly concerning, the 

merit system principles contained in section 2301 of this title.” The petitioner 

cites as the merit system principle that section 338.301 implements or concerns 

section 2301(b)(1), relating to selection and advancement of individuals on the 

basis of relative ability, knowledge and skills after fair competition. RRF, Tab 18 

at 4-5. 

¶5 However, the petitioner’s assertion that the CBP violated section 338.301 

because it inaccurately evaluated his qualifications fails to assert a violation of 

that provision. The regulation plainly requires agencies to appoint or promote 

individuals in the competitive service only if they meet the qualification 

standards stated in the referenced OPM guidelines. The petitioner has not 

asserted that the individual who was appointed to the position for which he 

applied failed to meet the qualification requirements for the position. Instead, he 

is simply appealing his own nonselection because he disagrees with the agency’s 

assessment of the sufficiency of his experience and believes that the agency erred 

in finding him ineligible.

4

 The agency’s action did not violate the plain language 

 

whose position is upgraded as a result of reclassification is considered to meet the 

qualification requirements of the upgraded position . . . . ” RRF, Tab 1, Exhibit G. 

OPM notes in response that the guidance cited applies by its terms only to the occupant 

of a position at the time of the reclassification. RRF, Tab 14 at 11.

4

The petitioner was entitled to challenge his ineligible rating through the agency’s 

administrative procedures under 5 C.F.R. § 300.104(b). In fact, he exercised this right 

and received a final determination of ineligibility from the agency’s Hiring Center. 

RRF, Tab 17 at 16.
5

of the regulation because it did not place an unqualified individual in a 

competitive service position.

¶6 The petitioner has failed to identify any prohibited personnel practice that 

was required by section 338.301 or to explain why the implementation of the 

regulation required the commission of a prohibited personnel practice. See

5 C.F.R. § 1203.11(b)(1). Accordingly, the petitioner’s request for review of an 

OPM regulation as implemented is DISMISSED for lack of jurisdiction. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board