UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PETER ANDREW MCMILLAN,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency,

and

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

CB-1205-15-0005-U-1

DATE: October 19, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Peter Andrew McMillan, Bayamon, Puerto Rico, pro se.

R. Alan Miller, Washington, D.C., for the Office of Personnel 

Management.

Marcia N. Tiersky, Springfield, Virginia, for the Department of Justice.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 the implementation of a regulation 

of the Office of Personnel Management (OPM) by the Department of Justice, 

Drug Enforcement Administration (DEA or agency), which the petitioner alleges 

required the commission of a prohibited personnel practice and to which he 

alleges he has been subjected. For the reasons discussed below, we DISMISS the 

petitioner’s request for lack of jurisdiction. 

ANALYSIS

¶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 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 declare an OPM regulation 

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); Di Jorio 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

¶4 Here, the petitioner challenges the DEA’s implementation of 5 C.F.R. 

§ 575.209(b)(1), a regulation that repeats the statutory limit set by 5 U.S.C. 

§ 5753(d)(1) on the amount of relocation incentive payments that may be paid an 

employee.2 With exceptions not applicable here, such a bonus may not exceed 

25% of the annual rate of basic pay of the employee multiplied by the number of 

years of the service period involved. The statute and regulation authori ze 

payment by either a single lump sum or by annual installments throughout the 

service period. 5 U.S.C. § 5753(d)(2); 5 C.F.R. § 575.209(a). The petitioner 

contends that the agency erroneously paid him only 25% of one year’s basic pay 

for a 3-year period of service and thereby committed a prohibited personnel 

practice under 5 U.S.C. § 2302(b)(12) by violating a statute or regulation that 

implements or directly concerns a merit system principle. 3 Regulation Review 

File (RRF), Tabs 1, 11. As explained below, the petitioner has not stated a claim 

within the Board’s regulation review jurisdiction, and therefore we dismiss his 

request for review. 

 

2

5 C.F.R. § 575.209(b)(1) states:

Except as provided in paragraph (c) of this section, the tot al amount of relocation 

incentive payments paid to an employee in a service period may not exceed 

25 percent of the annual rate of basic pay of the employee at the beginning of the 

service period multiplied by the number of years (including fractions of a year) in 

the service period (not to exceed 4 years).

5 U.S.C. § 5753(d)(1) states:

Except as provided in subsection (e), a bonus under this section shall not exceed 

25 percent of the annual rate of basic pay of the employee at the beginning of the 

service period multiplied by the number of years (including a fractional part of a 

year, as determined under regulations of [OPM]) in the required service period of 

the employee involved.

3

The petitioner also asserted that the DEA’s implementation of the regulation retaliated 

against him by violating 5 U.S.C. § 2302(b)(8) and (9). However, he alleged no 

protected disclosures or protected activity on his part prior to receipt of the disputed 

relocation payment that could have been a basis for the alleged reprisal.
4

¶5 The petitioner received a relocation incentive payment for a 3-year term of 

service in Puerto Rico from January 1, 2012, until January 10, 2015. The 

Relocation Incentive Service Agreement signed by the petitioner on February 7, 

2012, indicated that he received a lump sum incentive payment of $24,546.75, 

which was 25% of his annual basic pay. RRF, Tab 7 at 14-16. The petitioner 

contends that the DEA’s payment was an erroneous implementation of the 

regulation because the agency was required to pay him this amount for each year 

of his 3 years of service in Puerto Rico. RRF, Tab 1 at 5. 

¶6 In support of this contention, the petitioner cites the language of the statute 

and OPM’s regulation as requiring the additional payments. He also states that 

8 of the more than 128 individuals who were relocated by the DEA to Puerto Rico 

or the Virgin Islands received three annual payments of 25% of basic pay. RRF, 

Tab 11 at 5-6. According to the petitioner, the agency’s implementation of the 

regulation committed a prohibited personnel practice under 5 U.S.C. 

§ 2302(b)(12) because 5 C.F.R. § 575.209(b)(1) is a regulation that implements or 

directly concerns the merit system principle in 5 U.S.C. § 2301(b)(3) (“Equal pay 

should be provided for work of equal value . . . and appropriate incentives and 

recognition should be provided . . . [.]”). RRF, Tab 11 at 6-7. 

¶7 Regarding the petitioner’s reliance on the DEA’s payment of the maximum 

allowed relocation incentive in three annual installments to a few employees 

serving in the Caribbean Division, the agency concedes that this larger amount 

was mistakenly paid early on to a few employees because of a short-lived 

misunderstanding of a memorandum of the Administrator. However, the agency 

states that after that time the corrected formula, which was used for the 

petitioner’s incentive payment, has consistently been used in such payments to 

other Caribbean Division employees. RRF, Tab 7 at 10. The petitioner has 

acknowledged that the agency has paid the vast majority of relocated individuals 

the same relocation payment that he received, but he insists that the agency has 
5

violated 5 U.S.C. § 2302(b)(12) by doing so and is required to pay them the 

higher amount he seeks. RRF, Tab 11 at 5.

¶8 The petitioner has not articulated a prohibited personnel practice within the 

meaning of 5 U.S.C. § 2302(b)(12). Because the Civil Service Reform Act did 

not intend the merit system principles to be “self-executing,” the statute requires 

petitioner’s claim under this provision to identify a law, rule, or regulation 

implementing or directly concerning a merit system principle that the agency’s 

implementation of 5 C.F.R. § 575.209(b) violated. Wells v. Harris, 1 M.S.P.R. 

208, 215 (1979), modified on other grounds by Gende v. Department of Justice, 

23 M.S.P.R. 604, 608-10 (1984). Without meeting this requirement, a claim that 

OPM’s regulation violates a merit system principle is not sufficient. Blount v. 

Office of Personnel Management, 87 M.S.P.R. 87, ¶ 3 (2000). Thus, the 

petitioner’s sole reliance on the alleged improper implementation of 5 C.F.R. 

§ 575.209(b)(1) without identifying the violation of such a law, rule, or regulation 

does not allege a violation of 5 U.S.C. § 2302(b)(12) within the Board’s 

jurisdiction under 5 U.S.C. § 1204(f).4 The Board has no jurisdiction under the 

statute to address the petitioner’s claim that the DEA has been inconsistent in 

making its relocation incentive payments. 5

¶9 Thus, we find that the petitioner has failed to state a claim that the OPM 

regulation at 5 C.F.R. § 575.209(b)(1) has required commission of a prohibited 

personnel practice, as applied. Accordingly, the petitioner’s request for 

regulation review is dismissed for lack of jurisdiction. This is the final decision 

 

4

The petitioner is also mistaken in asserting that this regulation implements or directly 

concerns the merit system principles in 5 U.S.C. § 2301(b)(3) regarding equal pay and 

appropriate incentives. As noted above, the regulation does no more than state a limit 

on the amount of a relocation incentive payment that an agency may make.

5 As OPM noted in its submission, RRF, Tab 6 at 5, challenges to Federal agency 

decisions regarding entitlement to compensation, including relocation incentives, may 

be made pursuant to 31 U.S.C. § 3702(a)(2) and 5 C.F.R. part 178.
6

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.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board