UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

94 M.S.P.R. 212 

DOUGLAS L. AVERY, 

Petitioner, 

v. 

OFFICE OF PERSONNEL 

MANAGEMENT 

AND 

GENERAL SERVICES 

ADMINISTRATION, 

Respondents. 

DOCKET NUMBER 

CB-1205-02-0023-U-1 

DATE: September 11, 2003 

Douglas L. Avery, Fort Washington, Maryland, pro se. 

Eric S. Gold, Washington, D.C., for the Office of Personnel Management. 

F. Allen Phaup, II, Washington, D.C., for the General Services 

Administration. 

BEFORE 

Susanne T. Marshall, Chairman 

Neil A. G. McPhie, Member 

OPINION AND ORDER 

¶1 This matter is before the Board pursuant to the petitioner’s May 7, 2002, 

submission to the Clerk of the Board titled “Petition for Regulation Review.” For 

the reasons set forth below, we DENY the petitioner’s request. 
BACKGROUND 

¶2 The petitioner, a nonveteran, is employed by the General Services 

Administration (GSA) as a GS-12 Security Specialist with the Federal Protective 

Service. Request File (RF), Tab 1 at 2. He applied for a GS-13 Security 

Manager position under a competitive process, but his name was not included on 

the certificate forwarded to the selecting official.1

 Id. Thereafter, he learned that 

the names of three veterans were forwarded to the selecting official and that two 

of them were awarded ten additional points in the ranking because of veterans’ 

preference. Id. at 3. According to the petitioner, as a result of the additional 

points, the two individuals placed ahead of him in the ranking Id. 

¶3 In his initial and supplemental filings with the Board, the petitioner 

contends that veterans are not entitled to a preference, such as the addition of 

points to a score, when seeking promotion or “intra-agency movement” and that 

GSA’s policy of affording a preference forces human resource employees to 

routinely commit prohibited personnel practices in violation of 5 U.S.C. 

§ 2302(b)(6). RF, Tabs 1, 9, 12. That statutory provision precludes the granting 

of “any preference or advantage not authorized by law, rule, or regulation to any 

employee or applicant for employment (including defining the scope or manner of 

competition or the requirements for any position) for the purpose of improving or 

injuring the prospects of any particular person for employment.” 5 U.S.C. 

§ 2302(b)(6). The petitioner also asserts that GSA has misinterpreted 5 C.F.R. 

§ 211.102(c), regarding who meets the definition of a preference eligible and is 

therefore entitled to a preference.2

 RF, Tab 12. 

 

1

 The Office of Personnel Management (OPM) acknowledges that most of the pertinent 

facts in this matter are not in dispute. RF, Tab 7 at 3. 

2

 The petitioner also alleges that OPM has failed to meet its civil service oversight 

responsibility by allowing GSA to improperly award veterans’ preference. RF, Tabs 10, 

11. He also requests a stay of the hiring process for the Security Manager position 

pending a hearing and seeks an order directing the agency to compile a new certificate 

consistent with veterans’ preference laws. Id., Tab 1 at 6. Finally, he seeks an order 
ANALYSIS 

¶4 The Board has original jurisdiction to review rules and regulations issued 

by OPM and to declare such provisions invalid on their face or invalidly 

implemented by any agency.3

 5 U.S.C. § 1204(f); Prewitt v. Merit Systems 

Protection Board, 133 F.3d 885, 886-87 (Fed. Cir. 1998); Morales v. Office of 

Personnel Management, 90 M.S.P.R. 631, ¶ 5 (2001). In exercising its 

jurisdiction, the Board is authorized to declare OPM rules and regulations invalid 

if it determines that their implementation would require an employee to commit 

prohibited personnel practices, as defined in 5 U.S.C. § 2302(b). Prewitt, 133 

F.3d at 887; Morales, 90 M.S.P.R. 631, ¶ 5; see Weir v. Office of Personnel

Management, 62 M.S.P.R. 91, 93 (1994). 

¶5 The essence of the petitioner’s claim is that a prohibited personnel practice 

in violation of 5 U.S.C. § 2302(b)(6) is committed where a purportedly 

unauthorized preference improves the prospects of veterans as a class at the 

expense of nonveterans as a class. The Board has not viewed the language of 

section 2302(b)(6) so broadly; rather, the Board interprets section 2302(b)(6) to 

cover situations where the prospects of a specific person are injured or improved 

by an unauthorized preference. Weir v. Office of Personnel Management, 62 

M.S.P.R. at 94; see Office of Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 

(1993), aff'd sub nom. Byrd v. Merit Systems Protection Board, 39 F.3d 1196

(Fed. Cir. 1994) (Table). This is consistent with the language of the statute 

 

directing the agency to identify and notify individuals injured by the agency’s purported 

prohibited personnel practice during the past ten years Id. In light of our finding in 

this matter, we need not address these claims. 

3

 The essential distinction between facial invalidity and invalid implementation is that 

the former relates to prospective application of regulations, whereas the latter relates to 

implementation which has already taken place in some particular agency resulting in 

commission of a prohibited personnel practice at that agency. Morales, 90 M.S.P.R. at 

632 n.1; Wells v. Harris, 1 M.S.P.R. 208, 245-46 (1979, modified on other grounds by 

Gende v. Department of Justice, 23 M.S.P.R. 604 (1984). 
which, as indicated above, addresses the improper granting of any preference for 

“the purpose of improving or injuring the prospects of any particular person for 

employment.” 5 U.S.C. § 2302(b)(6) (emphasis supplied); see Weir, 62 M.S.P.R. 

at 94. 

¶6 The petitioner does not allege that GSA’s policy results in the unauthorized 

awarding of a preference for the purpose of helping or harming the employment 

prospects of any specific individual. Extra points were granted to all preference 

eligible candidates and the petitioner acknowledges that the granting of such a 

preference has been GSA policy for years. RF, Tab 1 at 3. Thus, even if GSA’s 

practice of granting a preference to veterans seeking promotion was contrary to 

statute, it does not constitute a prohibited personnel practice. See Weir, 62 

M.S.P.R. at 94. Accordingly, the Board has no authority to invalidate the 

practice. Id. The petition for a regulation review is DENIED. 

ORDER 

¶7 This is the final decision of the Merit Systems Protection Board in this 

regulation review request. 

NOTICE TO THE PETITIONER REGARDING 

YOUR FURTHER REVIEW RIGHTS 

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 

United States Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

The court must receive your request for review no later than 60 calendar days 

after your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. If you choose 
to file, be very careful to file on time. The court has held that normally it does 

not have the authority to waive this statutory deadline and that filings that do not 

comply with the deadline must be dismissed. See Pinat v. Office of Personnel 

Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law as well as review the Board’s regulations and other related material at 

our web site, http://www.mspb.gov. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board