UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CECIL E. POLLARD, ) DOCKET NUMBER

Petitioner, ) HQ12049110005

)

v. )

OFFICE OF PERSONNEL MANAGEMENT ) DATE; FEB 1 *•

and )

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES, )

Respondents. )

Cecil E. Pollard. Snoqualme, Washington, pro se.

Lynn A. Garrity, Esquire, Washington, D.C., for the

Office of Personnel Management.

BEFORE

Daniel R. Levinson, Chairman

Antonio C. Amador, Vice Chairman

Jessica L. Parks, Member

OPINION AND ORDER

The petitioner, Cecil Pollard, has asked the Eoc^J to

exercise its authority under 5 U.S.C.A, § 1204(f) (West

Supp. 1991) to review rules and regulations issued by the

Office of Personnel Management (0PM). Section 1204(f)

authorizes the Board to review, in its discretion, any

provision of a rule or regulation issued by 0PM to determine

whether the provision would require or has required the

commission of a prohibited personnel practice and,

therefore, is invalid on its face or as implemented by an
agency. The petitioner challenges the validity of

provisions in Chapters 353 and 630 of the Federal Personnel

Manual (FPM) concerning military leave for training duty and

the implementation of these provisions by the Department of

Health and Human Services (DHHS), his employing agency.

Both 0PM and DHHS were given an opportunity to respond to

the petitioner's request, but only OPM has filed a response.

For the reasons stated below, the Board denies the

petitioner's request.

BACKGROUND

The petitioner, a DHHS employee and a member of the

Naval Reserves, requested and was given 15 days of leave by

DHHS for naval reserve training. The petitioner then

requested that he be given an additional 15 days of leave

for a total of 30 consecutive days of training duty leave.

His supervisor at DHHS asked the petitioner for the name and

telephone number of his naval reserve unit commander for

purposes of attempting to work out with the commander a

mutually acceptable schedule for the leave. The petitioner

refused to provide this information and, consequently,

received an admonishment from the agency for having refused

to do so. Nevertheless, the petitioner was given the

requested 30 days of leave. The petitioner filed a

grievance concerning the admonishment under the negotiated,

agreement and obtained an adverse decision. Thereafter he

filed this request for a regulation review.
ANALYSIS

The petitioner asks the Board to review the guidance

provided by 0PM concerning the right of reservists in the

civil service to unpaid leave of absence "to perform active

duty for training or inactive duty training" under 38 U.S.C.

§ 2024(d). This guidance is contained in FPM Chapter 353,

Subchapter 1, ^Military Duty - Restoration Rights and Unpaid

Leaves of Absence," as revised by FPM Letter 353-5, March

19, 1990.* Specifically, the petitioner objects to

Subchapter 1-4(c)(3) concerning the resolution of conflicts

between military duty and the legitimate needs of the

employing agency. Where there is such a conflict, this

subsection of the FPM authorizes the agency to contact the

commander of the employee's military unit to determine if

the leave could be rescheduled or cancelled. The petitioner

contends that, in contrast to the FPM, the regulations of

the Department of Labor governing military leave for private

sector employees do not authorize such contacts by private

sector employers and that this difference in the two

agencies' regulations denies federal employees the equal

1 In its response, 0PM asserts that the petitioner has

failed to cite a rule or regulation that he is challenging.

If 0PM is contending that a provision of the FPM is not a

"rule* for purposes of 5 U.S.C. § 1204(f), it is mistaken.

An FPM provision which meets the definition of ^rule" in 5

U.S.C. § 551(4) is a rule for purposes of the Board's

regulation review authority. National Treasury Employees

Union v. Devine, 8 M.S.P.R. 640, 642 n. 1 (1981). We find

that the provision at issue here, which is designed to

implement the military leave statute, meets the statutory

definition.
protection of the laws.2

The petitioner has not identified what prohibited

personnel practice is at issue or explained why this

provision of the FPM would require an employee to commit a

prohibited personnel practice, as 5 C.F.R. § 1203.11(b)

requires a request for regulation review to do.

Petitioner's assertion that the provision violates the Equal

i -s - -.

Protection Clause doef; not by itself state a violation of 5

U.S.C. § 2302{b). It is true that the alleged denial of

equal protection would be inconsistent with the merit

ff

principle which requires all employees and applicants for

employment to be treated "with proper regard for their . ..

constitutional rights." 5 U.S.C. § 2301(b)(2). However,

the legislative history oi" the merit systems principles

indicates that they were not intended to be £elf-executing.

Wells v. Harris, 1 M.S.P.R. 208, 215 & n.ll (1979). "Unless

a law, rule or regulation implementing or directly

concerning the principles is violated (as under section

2302 (b) (11)) , the principles themselves may not be made the

basis of a legal action by an employee or agency." H. Conf.

Report Wo. 1717, 95th Cong.f 2d Sess. 128 (1978). Section

he petitioner also asks the Board to review part of FPM

Cl pter 630 concerning military leave for members of the

Armed Forces Reserves and the National Guard, citing Chapter

630-30. However, there is no subchapter 30 and page 630-30

addresses leave for child care and related matters. The

petitioner may have intended to cite subchapter 9 (pages

630-21 & 630-22), the part of Chapter 630 addressing

military leave, but in any event he has not alleged that any

particular provision in Chapter 630 is invalid.
5

2302(b)(11) makes it a prohibited personnel practice to

violate any law, rule or regulation implementing or directly

concerning the merit systems principles, and the Board would

have authority to review a claim that the FPM provision at

issue here would require violation of such a law. However,

the petitioner has not identified a law, rule or regulation

implementing or directly concerning section 2301(b)(2), the

merit systems principle which incorporates his

constitutional right to equal protection. Nor is the Board

aware of any law or regulation requiring the identical

treatment of federal and private sector employees.3

The gravamen of the petitioner's challenge to the FPM

provision is apparently that it is likely to result in

interference with "the reservist's right to leave for

required military training. However, we note that FPM

Chapter 353, Subchapter 1-4(c)(3) provides that, when the

agency contacts the military commander about a conflict,

*[i]f the military authorities or commander determine[s]

that the training or duty cannot be rescheduled or

cancelled, the agency is required to permit an employee to

take milrtary dutyw whether the duty is voluntary or

involuntary." Un^.er the circumstances, assuming arguendo

3 For purposes of the two-step analysis required under

section 2302(b)(ll)f see Wells v. Harris, 1 M.S.P.R. at 215,

the constitutional provision which the merit systems

principle in section 230l(b)(2) incorporates cannot, of

course, b« both the merit systems principle and the violated

law, rule or regulation which implements or directly

concerns the merit systems principle.
6

that interference with required military leave would be a

prohibited personnel practice, we see no basis for

concluding that such interference is a reasonably

foreseeable result of the FPM provision warranting

invalidation of the provision by the Board. See Wells v.

Harris, 1 M.S,P.R. at 246-47 (a rule "would require" a

prohibited personnel practice if it is reasonably

foreseeable that it will result in such a practice). Cf. In

re Exceptions from Competitive Merit Plans, 9 M.S.P.R. 116,

119 (1901) (the mere possibility that a rule may be

implemented in such a way as to violate section 2302(b) does

not make such implementation reasonably foreseeable and

warrant invalidation of the rule under the Board's

regulation review authority).

The petitioner also contends that DHHS has invalidly

implemented the FPM provision authorizing it to contact the

commander of his reserve unit because the agency admonished

him for failing to provide his commanding officer's name and

phone number when he was requested to do so. The petitioner

contends that the FPM provision does not clearly require the

employee to provide the name and phone number of the reserve

unit commander, and he argues that, he was justified in not

providing this information because of the possibility his

supervisor would mislead the commanding officer about the

ugoncy's reasons for objecting to military Ir.ave or would

violate the petitioner's alleged privacy interest in his job

performance. However, the petitioner again does not explain
how the agency's request for the information or its

admonishment of the petitioner for his failing to provide it

violated section 2302(b) or required an employee to commit a

prohibited personnel practice. In the absence of an alleged

prohibited personnel practice by the agency, 5 U.S.C.

§ 1204(f)(2)(B) gives the Board no authority to review the

agency's interpretation and implementation of the FPM. See

Johnson v. U.S. Customs Service, Department of the Treasury,

31 M.S.P.R. 104, 107 (1986) (the validity of agency's

failure to implement an 0PM rule was not within the Board's

regulation review jurisdiction in the absence of an

allegation the agency's failure was a prohibited personnel

practice).

Accordingly, because the petitioner has failed to

identify a prohibited personnel practice required by the FPM

provision which he challenges, the request for regulation

review is DENIED.

FOR THE BOARD:

ert E. Taylor //

Clerk of the Boartf

Washington, D.C,