UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAKHMATULLA ASATOV,

Petitioner,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

and

DEPARTMENT OF HOMELAND 

SECURITY,

Agencies.

DOCKET NUMBER

CB-1205-16-0021-U-1

DATE: September 27, 2016

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

Security.

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Management (OPM) regulations, specifically, 5 C.F.R. §§ 300.703 and 

300.705(e). MSPB Docket No. CB-1205-16-0021-U-1, Regulation Review File

(RRF), Tab 1 at 4-7. For the reasons discussed below, we DENY the petitioner’s 

request. 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)). 

BACKGROUND

¶2 The petitioner contends that the two challenged regulations are invalid both 

on their face and as implemented by the Department of Homeland Security 

(DHS). Regarding 5 C.F.R. § 300.703, which provides definitions for the terms 

used in applying the selective service rules in Federal employment, the petitioner 

alleges that the regulation is invalid on its face because it defines a “covered 

individual” as a “male” for purposes of OPM’s regulations implementing the 

statute. RRF, Tab 1 at 4-5. Per the petitioner, such a limitation must be 

invalidated because it violates the Equal Protection Clause of the 

14th Amendment to the Constitution. Id. at 5. The petitioner also contends that 

DHS’s compliance with the regulation makes the regulation invalid as 

implemented by DHS. Id.

¶3 Regarding 5 C.F.R. § 300.705(e), which governs agency actions in the 

hiring process after receiving statements related to selective service registration, 

the petitioner alleges the regulation is invalid on its face because it conflicts with 

an agency’s statutory requirements under 5 U.S.C. § 3318(b). Id. at 6. Further, 

the petitioner contends that the regulation was invalid as implemented by DHS 

because the agency utilized it to not provide him with a Standard Form 62 

(SF‐62), and because the agency disregarded evidence which would have shown 
3

him to not be a covered individual under the regulation. Id. at 7; RRF, Tab 3 

at 4‐5. 

¶4 OPM and DHS both raise objections to the petitioner’s request. Both 

parties argue that: (1) the petitioner fails to state a claim regarding the invalidity 

of the regulations; and (2) the petitioner’s challenges to one regulation are 

precluded by either the Board’s final decision in a previous request for regulation 

review or by collateral estoppel. RRF, Tabs 6-7. OPM additionally argues that 

the Board lacks jurisdiction to review the challenged regulations. RRF, Tab 6. 

DHS argues, moreover, that: (1) the issues raised by the petitioner can be 

reached through ordinary channels of appeal; (2) the Board should not consider 

the petitioner’s supplemental filing; and (3) the petitioner’s requested relief is 

vague, unclear, and impermissible. RRF, Tab 7. 

¶5 The petitioner did not respond to either OPM’s or DHS’s objections. 

ANALYSIS

¶6 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, on its face, require any employee 

to violate 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 violate 5 U.S.C. § 2302(b). See

5 U.S.C. § 1204(f)(2)(B). 

¶7 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 
4

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). 

5 C.F.R. § 300.703

¶8 The first regulation the petitioner has identified is 5 C.F.R. § 300.703, a 

regulation in 5 C.F.R. part 300, subpart G, “Statutory Bar to Appointment of 

Persons Who Fail To Register Under Selective Service Law.” The petitioner 

claims that this regulation is invalid on its face because it conflicts with the 

14th Amendment to the Constitution. 2

 RRF, Tab 1 at 4-5. As a threshold matter, 

the Board’s regulation review authority does not include constitutional 

challenges; it is limited to whether a challenged regulation would require an 

employee to violate 5 U.S.C. § 2302(b). 5 U.S.C. § 1204(f)(2). To the extent 

that the petitioner is claiming that the regulation causes a violation of 5 U.S.C. 

§ 2301(b)(2), which protects the constitutional rights of an employee or applicant 

and is incorporated by reference in section 2302(b)(12), the claim is denied for 

lack of jurisdiction. 

¶9 The defect in the petitioner’s request is that the challenged regulation 

merely reiterates the provisions of the statute it implements. Section 300.703, 

“Definitions,” defines an individual covered by subpart G as, inter alia, “a male 

 2 The petitioner raised a similar challenge to the regulation in a previous Request for 

Regulation Review, in which he alleged that the regulation’s limitation to only males 

constituted illegal discrimination in violation of 5 U.S.C. § 2302(b)(1). Asatov v. 

Office of Personnel Management, MSPB Docket No. CB-1205-15-0013-U-1, Regulation 

Review File, Tab 15. Because that Request for Regulation Review was dismissed for 

lack of jurisdiction, we do not apply the doctrine of res judicata here. See Hicks v. U.S. 

Postal Service, 114 M.S.P.R. 232, 237 (2010). Moreover, because the petitioner’s 

challenge invokes the Constitution instead of 5 U.S.C. § 2302(b)(1), we find that it 

is not the same issue and do not apply the doctrine of collateral estoppel. See Jenkins v. 

Environmental Protection Agency, 118 M.S.P.R. 161, 172 (2012). 
5

(a) whose application for appointment is under consideration by an executive 

agency.” This section implements 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. 

¶10 The petitioner is mistaken in contending 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. Thus, the petitioner’s 

challenge to 5 C.F.R. § 300.703 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 Management, 53 M.S.P.R. 511, 515‐16 (1992). 

¶11 Addressing the petitioner’s challenge to the regulation as implemented, 

DHS’s determination that the petitioner was ineligible for appointment was
6

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 only can 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. 

5 C.F.R. § 300.705(e)

¶12 The second regulation the petitioner has identified is 5 C.F.R. § 300.705, 

another regulation in 5 C.F.R. part 300, subpart G, which, inter alia, exempts 

agencies from complying with the “objections-to-eligibles” procedures described 

in 5 C.F.R. § 332.406 for qualified individuals. The petitioner first claims that 

5 C.F.R. § 300.705(e) is invalid on its face because it conflicts with 5 U.S.C. 

§ 3318(b). RRF, Tab 1 at 6. However, the petitioner’s challenge does not 

provide sufficient detail to establish a claim within the Board’s jurisdiction. 

While he appears to be claiming that the regulation would cause a violation of 

veterans’ preference rights, he has not identified how the regulation would do so. 

Id. 5 U.S.C. § 1204(f) and 5 C.F.R. part 1203 do not vest the Board with a 

general authority to review OPM regulations based merely on a bare allegation. 

See generally Hernandez v. Office of Personnel Management, 68 M.S.P.R. 196, 

198 (1995). Thus, the petitioner has failed to state a claim under 5 U.S.C. 

§ 1204(f)(2) and his claim is dismissed for lack of jurisdiction. 

¶13 As to the petitioner’s two claims that 5 C.F.R. § 300.705(e) is invalid as 

implemented by DHS, both claims also are dismissed for lack of jurisdiction. In 

his first claim, the petitioner alleges that DHS invalidly implemented the 

regulation because it did not respond to his request for an SF-62. RRF, Tab 1

at 7. In his second claim, he alleges that DHS’s implementation of

section 300.705(e) was invalid as implemented because he provided evidence to 
7

DHS that he was not an individual covered by the regulation. RRF, Tab 3 at 1-2. 

Just as with his claim that the regulation is facially invalid, the petitioner’s claims 

do not provide sufficient detail as to why DHS’s implementation of the regulation 

required an employee to commit a prohibited personnel practice. For the first 

claim, his only argument is that the agency declined to respond based on the 

authority granted to it by section 300.705(e). RRF, Tab 1 at 7. For the second 

claim, he has not identified any prohibited personnel practice that was committed, 

nor has he included a statement “describing in detail” why OPM’s regulations 

would require the commission of a prohibited personnel practice. RRF, Tab 3 

at 1-2. Under these circumstances, neither claim meets the requirements of

5 U.S.C. § 1204(f)(2) and thus are beyond the Board’s jurisdiction. 

¶14 Accordingly, the petitioner’s request for regulation review is DENIED. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board