                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     PAUL G. MIRANNE,                                DOCKET NUMBER
                   Appellant,                        AT-3443-13-0527-B-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: February 27, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Paul G. Miranne, Pensacola, Florida, pro se.

           Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the remand initial decision,
     which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     or regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.                  5 C.F.R.
     § 1201.113(b).
¶2         The appellant filed an initial appeal challenging the agency’s merit
     promotion criteria pursuant to 5 C.F.R. § 300.104(a). Initial Appeal File, Tab 1.
     Following our decision in Miranne v. Department of the Navy, 121 M.S.P.R. 235
     (2014), the administrative judge issued a supplemental acknowledgment order
     providing the parties an additional opportunity to submit evidence and argument
     concerning the Board’s jurisdiction over this appeal. 2          Remand Appeal File
     (RAF), Tab 2.        After considering the parties’ original and supplemental
     submissions, the administrative judge dismissed the appeal for lack of
     jurisdiction, finding that the appellant’s challenge to the agency’s selection
     criteria was in fact a challenge to the agency’s individualized hiring decision and
     thus outside of the Board’s appellate jurisdiction under 5 C.F.R. Part 300. RAF,
     Tab 6, Remand Initial Decision (RID) at 5-6. The appellant has filed a petition
     for review of the remand initial decision. Remand Petition for Review (RPFR)
     File, Tab 1. The agency has not filed a response.

     2
       In our prior Opinion and Order, we found that the appellant’s initial appeal was timely
     filed with the regional office after he received a final agency decision from the agency.
     See Miranne, 121 M.S.P.R. 245, ¶¶ 16-17.
                                                                                        3

¶3        The Board has jurisdiction over an employment practices appeal pursuant
     to 5 C.F.R. § 300.104(a) when two conditions are met: first, the appeal must
     concern an employment practice that the Office of Personnel Management (OPM)
     is involved in administering; and second, the appellant must make a nonfrivolous
     allegation that the employment practice violated one of the “basic requirements”
     for employment practices set forth in 5 C.F.R. § 300.103. Sauser v. Department
     of Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010). OPM, however, need not be
     immediately involved in the practice in question, and an agency’s misapplication
     of a valid OPM requirement may constitute an appealable employment practice
     action. Id., ¶ 7; see Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 888
     (Fed. Cir. 1998). Although the term “employment practice” is to be construed
     broadly, such breadth does not cover “an individual agency action or decision that
     is not made pursuant to or as part of a rule or practice of some kind.” Prewitt,
     133 F.3d at 887.
¶4        We agree with the administrative judge that the appellant has failed to
     identify an employment practice that OPM administers or an OPM requirement
     that the agency misapplied, and find that the jurisdictional dismissal of the appeal
     was thus proper. RID at 5-6. In support of his appeal, the appellant argued that
     the agency failed to comply with 5 C.F.R. § 300.103 by failing to develop
     selection criteria based on a professionally developed job analysis. See RAF, Tab
     4 at 2-3, 9; RPFR File, Tab 1 at 9-10.          Whether an agency relied upon a
     professionally developed job analysis is a basic requirement of a valid
     employment practice, such as a scoring formula, time-in-grade requirement, or
     qualification standard for a position series.     See Chadwell v. Merit Systems
     Protection Board, 629 F.3d 1306, 1311 (Fed. Cir. 2010); Mapstone v. Department
     of the Interior, 106 M.S.P.R. 691, ¶¶ 13-14 (2007), modified on other grounds
     by 110 M.S.P.R. 122, ¶ 7 (2008). Here, however, the appellant has only asserted
     that the agency failed to use a professional job analysis to develop the criteria for
     the promotional opportunity at issue. RAF, Tab 5 at 9. Because the appellant has
                                                                                          4

     failed to allege that OPM was involved in developing or administering the alleged
     invalid criteria used by the agency, or that the agency misapplied an employment
     practice in the course of its merit promotion determination, his appeal is best
     characterized as a challenge to the agency’s individualized hiring decisions,
     which purportedly favored a select group of female applicants.          See Prewitt,
     133 F.3d at 887-88; see also Sauser, 113 M.S.P.R. 403, ¶ 8 (the agency’s
     assessment of the appellant’s qualifications was based on OPM’s general engineer
     qualification   standards   and   was    considered    an   employment       practice);
     Mapstone, 106 M.S.P.R. 691, ¶ 14 (the agency’s decision that the appellant was
     not qualified was based on OPM’s qualification standards and education
     requirements for the position series, thus constituting an employment practice).
     We concur with the administrative judge that the appellant’s allegations fail to
     establish the Board’s jurisdiction over an employment practices appeal.
¶5        Finally, to the extent that the appellant argues that the administrative judge
     should have recused himself, we find no evidence of administrative judge bias,
     and we agree with the administrative judge’s denial of the appellant’s motion to
     recuse. See RID at 1 n.1; RAF, Tab 5. Neither the administrative judge’s prior
     initial decision dismissing the appellant’s appeal as untimely, nor the instant
     remand initial decision dismissing the appellant’s appeal for lack of jurisdiction,
     call into question the presumption of honesty and integrity which accompanies
     administrative adjudicators. See Smith v. U.S. Postal Service, 81 M.S.P.R. 443,
     ¶¶ 4, 6 (1999) (case-related rulings do not serve as a basis for recusal).
¶6        The administrative judge’s jurisdictional dismissal of the appellant’s appeal
     is AFFIRMED.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
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                          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 the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). 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) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           6

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
