Maloney v. Office of Pers. Mgmt.

• Court: Merit Systems Protection Board
• Parties: PEGGY A. MALONEY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE PRESIDENT, Agency.
• Decision Date: 24 May 2023
• Docket Number: CB-1205-21-0005-U-1

1

PEGGY A. MALONEY, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Agency,

and OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE PRESIDENT, Agency.

No. CB-1205-21-0005-U-1

United States of America Merit Systems Protection Board

May 24, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL^[1]

Peggy A. Maloney, Greenport, New York, pro se.

Nadia K. Pluta, Esquire, Washington, D.C., for the Office of Personnel Management.

Raheemah Abdulaleem and John Kevin Fellin, Washington, D.C., for the Office of Administration, Executive Office of the President.

2

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member ^[2]

FINAL ORDER

¶1 The petitioner requests that we review, pursuant to our authority under 5 U.S.C. § 1204(f), the implementation of 5 C.F.R. § 752.403 by her former employer, the Office of Administration (OA), an entity within the Executive Office of the President. Request File (RF), Tab 1. She further alleges that OA took various actions in violation of other Office of Personnel Management (OPM) regulations. For the reasons set forth below, we DENY the petitioner's request for regulation review.

BACKGROUND

¶2 The petitioner alleges that OA violated 5 C.F.R. § 752.403(b), which provides that "[a]n agency may not take an adverse action against an employee on the basis of any reason prohibited by 5 U.S.C. § 2302." RF, Tab 1 at 2. She states that OA made significant changes to her working conditions and took multiple adverse actions against her in reprisal for her protected whistleblower disclosures in violation of 5 U.S.C. § 2302(b)(8). Id. at 9. She states that OA's violations of OPM regulations were also prohibited personnel practices (PPP) under 5 U.S.C. § 2302(b)(3) and (b)(12). Id. The petitioner states that she is also challenging the OA's implementation of several other OPM regulations, including 5 C.F.R. §§ 410.302, 531.410, 630.1202, 736.201, 752.102, and 752.201. Id. at 4, 6, 10.

3

¶3 OA responds that the petitioner is attempting to relitigate claims that she has brought in other appeals.^[3] RF, Tab 9 at 1. OA states that the petitioner "appears to challenge multiple regulations, but only to the extent that she merely lists them without identifying any specific legal infirmities for the Board's review." Id. at 5. OA states that these "challenges" relate to matters that she already has appealed. Id. Finally, OA states that the petitioner "already has had available to her through her individual appeals all appropriate remedies for the challenged personnel actions." Id. at 6. OPM did not file a response.^[4]

ANALYSIS

¶4 The Board has original jurisdiction to review rules and regulations promulgated by OPM. 5 U.S.C. § 1204(f). In exercising its jurisdiction, the Board is authorized to declare an OPM rule or regulation invalid on its face if the Board determines that such provision would, if implemented by any agency, on its face, require any employee to commit a PPP as defined by 5 U.S.C. § 2302(b). 5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has the authority to determine that an OPM regulation has been invalidly implemented by an agency if the Board determines that such provision, as it has been implemented by the agency through any personnel action taken by the agency or through any policy adopted by the agency in conformity with such provision, has required any employee to commit a PPP. 5 U.S.C. § 1204(f)(2)(B).

4

See Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 887 (Fed. Cir. 1998). Here, the petitioner challenges the implementation of various OPM regulations by her former employer, OA.

¶5 The Board's regulations direct the individual requesting review to provide the following information: the requester's name, address, and signature; a citation identifying the regulation being challenged; a statement (along with any relevant documents) describing in detail the reasons why the regulation would require an employee to commit a PPP, or the reasons why the implementation of the regulation requires an employee to commit a PPP; specific identification of the PPP at issue; and a description of the action the requester would like the Board to take. 5 C.F.R. § 1203.11(b). See Di Jorio v. Office of...