                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARY E. PURIFOY,                                DOCKET NUMBER
                   Appellant,                        AT-3443-12-0204-B-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: April 15, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Paul G. Miranne, Pensacola, Florida, for the appellant.

           Tamiko N. Walker, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the remand initial decision,
     which dismissed her employment practices appeal as untimely filed without good
     cause shown.      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 or regulation or the erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. For the reasons discussed
     below, however, we VACATE the remand initial decision dismissing the appeal
     as untimely, and instead DISMISS the appeal for lack of jurisdiction.

                                      BACKGROUND
¶2        In November 2009, the appellant, a GS-07 Management Assistant with the
     agency, learned that she was not selected for a GS-09 Management Analyst
     position for which she had applied. Initial Appeal File (IAF), Tab 1 at 1, 8-10.
     In February 2010, the appellant filed an equal employment opportunity (EEO)
     complaint alleging that the agency discriminated against her based upon race and
     sex when it: (1) denied her rotational assignments and training to enable her to
     compete for higher-graded positions; and (2) changed the qualification criteria for
     the GS-09 Management Analyst position to ensure that she was excluded from
     consideration. Remand Appeal File (RAF), Tab 11 at 64 (the agency’s notice of
     the claims accepted for investigation); see id. at 22-25 (formal EEO complaint).
¶3        In April 2010, during the agency’s investigation of the appellant’s EEO
     complaint, it replicated its review of her application using the RESUMIX system
     and discovered that the system had erroneously failed to identify her as qualified
                                                                                          3

     for the position. 2 RAF, Tab 9 at 40-41. RESUMIX is an automated system that
     the agency used to search applications to identify candidates that possessed
     certain skills required for the position.        Id.; see IAF, Tab 14 at 3 (the
     administrative judge’s description of RESUMIX).          During the agency’s initial
     review of applications, due to an unexplained error, the RESUMIX system failed
     to identify the appellant as a candidate with the requisite budget and counseling
     skills for the position, although her application indicated that she possessed those
     skills. RAF, Tab 9 at 40-41. Shortly after discovering the RESUMIX system
     error, the agency informed the appellant that her application had not been referred
     for further consideration due to an administrative error and that she would receive
     priority consideration for future GS-09 Management Analyst positions. RAF, Tab
     7 at 65.
¶4         The appellant continued to pursue her EEO complaint, and, after the agency
     issued a report of investigation (ROI), she requested a hearing before an Equal
     Employment Opportunity Commission (EEOC) administrative judge. IAF, Tab
     19 at 50; RAF, Tab 11 at 4. On September 19, 2011, over a year after the agency
     issued the ROI, and after the EEOC administrative judge notified the appellant
     that he intended to issue a decision on her complaint without a hearing, the
     appellant sent a letter to the EEOC administrative judge alleging for the first time
     that the agency had improperly characterized her claims. 3 PFR File, Tab 1 at



     2
       In the agency’s pleadings, it represented that the appellant’s nonselection was the
     result of an “administrative error” that it discovered in November 2009. See IAF, Tab
     19 at 5; RAF, Tab 6 at 6. However, the agency’s Supervisory Human Resource
     Specialist submitted a sworn statement explaining that the RESUMIX error was
     discovered in April 2010 during the EEO investigation. See RAF, Tab 9 at 40-41; see
     also Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (the statements
     of a party’s representative in a pleadin g do not constitute evidence).
     3
       The sole copy of this letter in the record below was submitted by the appellant and
     was unsigned. See Petition for Review (PFR) File, Tab 1 at 81-92. However, the
     agency has not disputed the appellant’s assertions that she submitted the letter to the
     EEOC administrative judge. See id. at 10; see also Remand Petition for Review (RPFR)
                                                                                             4

     81-85.   Specifically, the appellant claimed that, although she was “tardy in
     coming to this decision,” the agency had failed to recognize her intent to raise an
     employment practices claim. PFR File, Tab 1 at 81-85.
¶5         Ten days later, on September 29, 2011, the EEOC administrative judge
     issued a decision that did not address the appellant’s allegations regarding an
     employment practices claim but, instead, found that she failed to prove her claims
     of discrimination in relation to the claims that the agency had accepted for
     investigation.   IAF, Tab 24.     Approximately 1 month later, on November 10,
     2011, the agency issued a final agency decision (FAD) adopting the EEOC
     administrative judge’s decision. IAF, Tab 1 at 15-16. The FAD did not indicate
     that the appellant had filed a mixed-case complaint 4 and did not contain Board
     appeal rights. Id. at 15-19.
¶6         Within 30 days of receiving of the FAD, 5 the appellant filed an employment
     practices appeal with the Board. IAF, Tab 1. The administrative judge issued an
     order to show cause advising the appellant of the elements and burden of proof
     necessary to establish jurisdiction over an employment practices claim. IAF, Tab
     6. The appellant alleged that the agency failed to maintain a merit promotion
     plan and to use professionally-developed job analyses. IAF, Tab 4 at 4-5, Tab 10
     at 4-5. The administrative judge found that, because the agency conceded that the
     appellant was a qualified applicant who was improperly rejected, these alleged
     practices were not the cause of the appellant’s nonselection. IAF, Tab 14 at 3;


     File, Tab 1 at 8-9 (the appellant’s assertions regarding the letter); PFR File, Tab 3;
     RPFR File, Tab 3 (the agency’s responses to the appellant’s petitions for review).
     4
       A mixed-case complaint is one in which an appellant alleges that she has been subject
     to an action that is appealable to the Board and it was effected, in whole or in part, due
     to discrimination. Montalvo v. U.S. Postal Service, 91 M.S.P.R. 671, ¶ 5 (2002);
     29 C.F.R. § 1614.302(a)(1).
     5
       The agency represented that it mailed the FAD to the appellant on November 16,
     2011. See RAF, Tab 6 at 9. The appellant represented that she received the FAD on
     November 19, 2011. IAF, Tab 1 at 2. The parties do not dispute that the appellant’s
     December 15, 2011 Board appeal was filed within 30 days of her receipt of the FAD.
                                                                                          5

     see also IAF, Tab 4, Tab 7 at 5, Tab 10 (the parties’ submissions regarding
     jurisdiction). However, although not raised by the appellant, the administrative
     judge sua sponte found that the fact that the agency rejected the appellant’s
     application due to an error in its automated résumé ranking system raised a
     nonfrivolous allegation of Board jurisdiction over her employment practices
     appeal entitling her to a hearing. IAF, Tab 14 at 3-4.
¶7        Shortly   thereafter,   prior   to   holding   a   jurisdictional   hearing,   the
     administrative judge determined that the appeal appeared to be untimely filed and
     issued an order advising the appellant of her burden of proof on the issue of
     timeliness. IAF, Tab 17. In response, the appellant argued that her Board appeal
     was timely because her EEO complaint was a mixed-case complaint and
     mixed-case procedures should apply to her Board appeal. IAF, Tab 18 at 2-3;
     see 5 C.F.R. § 1201.154(b)(1) (when an employee elects to file a mixed-case
     complaint with the agency, her Board appeal must be filed within 30 days of her
     receipt of the FAD). In an initial decision, the administrative judge found that the
     appellant did not raise an employment practices claim in her EEO complaint, and,
     therefore, the date of the issuance of the FAD could not serve to extend the
     deadline for filing a timely Board appeal. IAF, Tab 26, Initial Decision (ID) at
     4-5. Accordingly, the administrative judge found that the appellant’s appeal was
     untimely by 2 years, and she had not established good cause for her filing delay.
     ID at 4-7.
¶8        The Board granted the appellant’s petition for review, finding that,
     regardless of whether she raised an employment practices claim in her EEO
     complaint, the agency was obligated to provide her with notice of the right to file
     an employment practices appeal with the Board and had failed to do so. PFR
     File, Tab 4, Remand Order at 1, 4.           The Board remanded the appeal for
     determination of when the appellant became aware of her right to file an
     employment practices appeal and whether she acted with due diligence and
     reasonable prudence in filing her appeal thereafter. Remand Order at 4.
                                                                                              6

¶9          On remand, following submissions by the parties, the administrative judge
      again dismissed the appeal as untimely filed without good cause shown. RAF,
      Tab 12, Remand Initial Decision (RID); see RAF, Tabs 3, 6-11 (the parties’
      submissions regarding timeliness on remand).               Based on the appellant’s
      representation that she became aware that she could file an employment practices
      appeal with the Board in 2009, the administrative judge found that her
      untimeliness was not caused by the agency’s failure to notify her of her appeal
      rights but, rather, by her belief that she had to wait until her EEO complaint was
      resolved before filing her Board appeal. RID at 7-8. Because the record did not
      provide a reasonable basis for this belief, the administrative judge found that the
      appellant did not establish good cause for her filing delay. RID at 8-11; see RAF,
      Tab 3 (the appellant’s responses to the order to show cause on remand).
¶10         The appellant has filed a petition for review of the remand initial decision,
      in which she argues, among other things, that her Board appeal was timely
      because her EEO complaint was a mixed-case complaint and that she filed her
      appeal within 30 days of receiving the FAD. RPFR File, Tab 1 at 2, 5-9, 13. The
      agency has filed a response to the petition for review. 6 RPFR File, Tab 3.


      6
        The agency filed its response on June 27, 2014, and mailed copies to both the
      appellant and her representative by June 28, 2014. RPFR File, Tab 3 at 10. Pursuant to
      the Board’s regulations, any reply to a response to a petition for review must be filed
      with in 10 days after the date of service of the response to the petition for review.
      5 C.F.R. § 1201.114(e); see 5 C.F.R. § 1201.4(i)-(j), (l) (defining “date of service” to
      include the date of mailing). The Clerk of the Board advised the appellant of th is
      deadline. RPFR File, Tab 2 at 1. However, the appellant did not file a reply to the
      agency’s response until July 14, 2014, 6 days after the last day for timely filing had
      passed. See RPFR File, Tab 4 at 8 (an envelope showing the postmark date for the
      reply); see also 5 C.F.R. § 1201.4(j), (l) (the date of service by U.S. mail is determined
      by the postmark date). The appellant represented that her reply was untimely because
      her representative was on annual leave between June 30, 2014, and July 7, 2014. RPFR
      File, Tab 4 at 1, 7. We find that this does not establish good cause for her filing delay,
      especially where, as here, the Clerk previously advised the appellant of the date by
      which she could expect to receive the agency’s response. RPFR File, Tab 2 at 1; see
      Etherton v. Department of the Treasury, 26 M.S.P.R. 588, 590 (1985) (good cause is not
      shown for an untimely filing where the party could have requested an extension of time
                                                                                             7

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶11         The issue of jurisdiction is always before the Board and may be raised by
      either party or sua sponte by the Board at any time during a proceeding. Bell v.
      Department of Homeland Security, 95 M.S.P.R. 580, ¶ 14 (2004). The existence
      of Board jurisdiction is the threshold issue in adjudicating an appeal and
      ordinarily should be determined before reaching the issue of timeliness. Burger
      v. U.S. Postal Service, 93 M.S.P.R. 582, ¶ 44 (2003), aff’d sub nom. Hayes v. U.S.
      Postal Service, 390 F.3d 1373 (Fed. Cir. 2004).            Nonetheless, where Board
      jurisdiction over an appeal is unresolved but the record is sufficiently developed
      to dismiss the appeal on timeliness grounds, an administrative judge may dismiss
      the appeal on those grounds without making a determination as to jurisdiction.
      Popham v. U.S. Postal Service, 50 M.S.P.R. 193, 197-98 (1991). However, where
      the Board clearly lacks jurisdiction over an appeal and the record suggests that
      the question of timeliness is close, the better practice is to address and decide the
      jurisdictional issue. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
      ¶ 16 (2007); Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005),
      aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
¶12         Here, concerning the timeliness issue, if the appellant had promptly
      objected to the agency’s characterization of the claims accepted for investigation
      and asserted that she was subject to a matter appealable to the Board, her EEO
      complaint would be considered a mixed-case complaint for purposes of
      calculating the deadline for filing her Board appeal, regardless of whether the
      agency processed the complaint as such.          See Miranne v. Department of the
      Navy, 121 M.S.P.R. 235, ¶¶ 2-4, 13-15 (2014) (finding that a mixed-case appeal
      was timely filed after the conclusion of the EEO process, notwithstanding the
      agency’s refusal to process the complaint as a mixed case). Instead, however, the
      appellant waited approximately 17 months after the agency notified her of the

      for filin g but did not do so). Accordingly, we have not considered the appellant’s reply
      in reaching our decision in this matter.
                                                                                      8

      claims accepted for investigation to assert that she intended to raise an
      employment practices claim. See RAF, Tab 11 at 62-66 (the agency’s March 29,
      2010 letter informing the appellant of the claims accepted for investigation); PFR
      File, Tab 1 at 81-92 (the appellant’s September 19, 2011 letter asserting for the
      first time that she intended to raise an employment practices claim).
¶13        Similarly, if the EEOC or the agency had issued a final decision finding that
      the appellant’s September 19, 2011 letter was an untimely attempt to amend her
      EEO complaint, mixed-case filing procedures would not apply to her Board
      appeal and her appeal would be untimely.            See Cloutier v. U.S. Postal
      Service, 89 M.S.P.R. 411, ¶ 6 (2001) (the time limits for filing a mixed-case
      appeal under 5 C.F.R. § 1201.154(b) do not apply unless an EEO complaint was
      timely filed with the agency). However, the record below contains no evidence
      that either the EEOC administrative judge or the agency made any finding as to
      whether the appellant was attempting to amend her EEO complaint and, if so,
      whether such an amendment was timely. See IAF, Tab 1 at 15-19 (the FAD), Tab
      24 (the EEOC administrative judge’s decision); see also Moore v. U.S. Postal
      Service, 91 M.S.P.R. 277, ¶ 8 (2002) (an administrative judge may not dismiss an
      appeal as untimely filed based on the untimeliness of the appellant’s formal EEO
      complaint absent evidence of either an FAD dismissing the EEO complaint as
      untimely that was not appealed to the EEOC, or a decision by the EEOC
      dismissing the complaint as untimely).
¶14        In light of these factors, we acknowledge that the issue of timeliness is
      close. Accordingly, we reserve judgement on the timeliness of the appellant’s
      appeal and instead dismiss for lack of jurisdiction. See Vitale, 107 M.S.P.R. 501,
      ¶¶ 16, 27 (dismissing an appeal on review for lack of jurisdiction where the
      administrative judge dismissed the appeal as untimely, but the question of
      timeliness was close); Rosell, 100 M.S.P.R. 594, ¶¶ 6, 9 (same). We find that the
      record is sufficiently developed to address the issue of jurisdiction without
      remand. The administrative judge provided notice of the elements and burden of
                                                                                         9

      proof necessary to establish jurisdiction over an employment practices claim, and
      the parties submitted evidence and argument regarding the issue of jurisdiction.
      IAF, Tab 6 (the administrative judge’s notice), Tab 7, Tab 10 (the parties’
      submissions in response to the notice). Based upon the evidence of record, we
      find that the appellant failed to raise a nonfrivolous allegation of Board
      jurisdiction over her employment practices appeal. See Beets v. Department of
      Homeland Security, 98 M.S.P.R. 451, ¶ 9 (2005) (finding that the Board could
      resolve the issue of jurisdiction without a hearing where the parties submitted
      evidence and argument on the issue below and the undisputed evidence of record
      established that the Board lacked jurisdiction over the appeal).
¶15        The Board has jurisdiction over an employment practices appeal pursuant
      to 5 C.F.R. § 300.104(a) when two conditions are met: (1) the appeal concerns an
      employment practice that the Office of Personnel Management (OPM) is involved
      in administering; and (2) the employment practice must be alleged to have
      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). An agency’s misapplication of a valid OPM requirement may
      constitute an employment practice appealable to the Board but only if OPM is
      involved in the administration of the practice in a significant way. Prewitt v.
      Merit Systems Protection Board, 133 F.3d 885, 888 (Fed. Cir. 1998); Mapstone v.
      Department of the Interior, 106 M.S.P.R. 691, ¶ 14 (2007), modified on other
      grounds by Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7
      (2008).   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.
¶16        In the instant case, the appellant alleged that the agency manipulated the
      hiring process and changed the qualification criteria for the position to ensure that
      she was excluded from consideration. See IAF, Tab 4 at 3, Tab 10 at 3; see also
                                                                                            10

      RPFR File, Tab 1 at 5-6. We find that these claims constitute a challenge to an
      individual selection process for a particular position with the agency, rather than
      the application of a rule, provision, or policy by the agency, and do not raise an
      employment practices claim or any other matter appealable to the Board. 7 See
      Prewitt, 133 F.3d at 887 (holding that the agency’s individual error, specific to
      the appellant, was not an employment practice); Banks v. Department of
      Agriculture, 59 M.S.P.R. 157, 160 (1993) (an appellant’s challenges to his
      nonselection for a position and agency irregularities in the selection process did
      not raise an employment practices claim), aff’d, 26 F.3d 140 (Fed. Cir. 1994)
      (Table).
¶17         The appellant further alleged that the agency violated 5 C.F.R. § 300.103 in
      failing to maintain an active merit promotion plan and to develop selection
      criteria based upon a professionally-developed job analysis. See IAF, Tab 4 at 4,
      5, Tab 10 at 4-5.     We find that these assertions fail to raise a nonfrivolous
      allegation of Board jurisdiction because the appellant did not allege that OPM
      was involved in administering the alleged practices at issue or that the agency’s
      alleged wrongful actions were based upon any regulation or standard promulgated
      by OPM. See Prewitt, 133 F.3d at 888 (the Board lacked jurisdiction over an
      employment practices appeal where the appellant did not allege that OPM was
      involved in the establishment of the allegedly improper minimum qualifications
      for a position); Manno v. Department of Justice, 85 M.S.P.R. 696, ¶ 8 (2000) (the
      Board lacked jurisdiction over an employment practices appeal where the


      7
        The appellant’s contentions that the agency also failed to select her for a prior
      vacancy similarly do not raise a nonfrivo lous allegation of Board jurisdiction. See IAF,
      Tab 10 at 3, Tab 15 at 2. This claim solely challenges actions of the agency and does
      not allege that OPM had any significant involvement in the selection processes. See
      Del Ga ldo v. Department of the Navy, 15 M.S.P.R. 635 (1983) (an appellant’s
      allegations that an agency repeatedly failed to hire him did not raise an employment
      practices claim); see also Prewitt, 133 F.3d at 887-88 (to establish Board jurisdiction
      over an employment practices appeal, an appellant must demonstrate significant
      invo lvement by OPM in the selection process).
                                                                                      11

      appellant failed to show that OPM had any involvement in mishandling his
      application for promotion); cf. Sauser, 113 M.S.P.R. 403, ¶ 8 (an agency’s
      application of OPM’s general engineer qualification standards satisfied the
      requirement that the employment practice be one OPM is involved in
      administering); Mapstone, 106 M.S.P.R. 691, ¶¶ 14-15 (finding that the
      jurisdictional requirement of OPM involvement in an alleged employment
      practice may have been met where the agency’s decision that the appellant was
      not qualified was based on OPM’s qualification standards and education
      requirements for the position series). Moreover, we agree with the administrative
      judge that, even assuming that the actions challenged by the appellant constituted
      employment practices, the Board would nevertheless lack jurisdiction over her
      appeal because she failed to raise a nonfrivolous allegation that they affected the
      processing of her application. IAF, Tab 14 at 3; see Dow v. General Services
      Administration, 590 F.3d 1338, 1342–44 (Fed. Cir. 2010) (finding that, for the
      Board to have jurisdiction over an employment practices claim, it is necessary
      that the challenged employment practice have been applied to the applicant as the
      basis for the adverse hiring decision).   Instead, the agency conceded that the
      appellant should have been identified as a qualified candidate but was not, as the
      result of a RESUMIX system error. RAF, Tab 7 at 65, Tab 9 at 40-41.
¶18        In that regard, we disagree with the administrative judge that the agency’s
      erroneous rejection of the appellant’s application due to a RESUMIX system error
      raised a nonfrivolous allegation of Board jurisdiction over her employment
      practices appeal entitling her to a jurisdictional hearing. See IAF, Tab 14 at 3-4.
      Neither the appellant nor the agency has alleged that the RESUMIX system error
      occurred pursuant to or as part of any rule or practice. See Manno, 85 M.S.P.R.
      696, ¶ 7 (an agency’s alleged mishandling of an appellant’s application did not
      raise a nonfrivolous allegation of Board jurisdiction over an employment
      practices appeal where he did not allege that the mishandling was pursuant to any
      rule or practice); Banks, 59 M.S.P.R. at 159-60 (an agency’s failure to consider
                                                                                       12

      all of an appellant’s relevant education and experience and other alleged
      irregularities in the selection process did not constitute an employment practice).
      Moreover, neither the agency nor the appellant alleged that OPM had any
      involvement,    significant   or otherwise,    in   the   RESUMIX system.       See
      Manno, 85 M.S.P.R. 696, ¶ 8 (an appellant did not raise a nonfrivolous allegation
      of Board jurisdiction where he did not allege that OPM had any involvement in
      the agency’s mishandling of his application).        Accordingly, we find that the
      RESUMIX system error did not raise a nonfrivolous allegation of Board
      jurisdiction entitling the appellant to a jurisdictional hearing.
¶19         On review, the appellant also contends that the agency violated 5 C.F.R.
      § 1201.25(c), which requires the agency to submit an agency file with all of the
      relevant information. RPFR File, Tab 1 at 10-11, 13. However, the appellant has
      not identified any documents that were not already in her custody and control that
      the agency failed to produce or explained how their omission prejudiced her in
      any way.     Id.   To the extent that the appellant intends to challenge the
      administrative judge’s adjudication of her motions to compel and motion for
      sanctions, she fails to specifically describe how any purported errors by the
      administrative judge amounted to an abuse of discretion or had any impact on the
      outcome of her appeal. See IAF, Tabs 5, 13, 15, 16 (the appellant’s motions to
      compel and motion for sanctions), Tab 14 at 3 (the administrative judge’s partial
      denial of the appellant’s first motion to compel).        Although we find that the
      administrative judge erred in failing to rule upon the appellant’s second motion to
      compel and her motion for sanctions, we find that the appellant has failed to
      demonstrate that this error affected her substantive rights.             Mitchell v.
      Department of Defense, 46 M.S.P.R. 154, 161 (1990) (declining to find that the
      failure to rule on a motion for sanctions was adjudicatory error absent a showing
      of prejudice). We further find that appellant has not otherwise established that
      the administrative judge committed an abuse of discretion or a procedural error
      that prejudiced    her   appeal.     See   Wagner     v. Environmental    Protection
                                                                                         13

      Agency, 54 M.S.P.R. 447, 452 (1992) (the Board will not reverse an
      administrative judge’s rulings on discovery matters absent an abuse of
      discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table); see also Vires v.
      Department of the Navy, 38 M.S.P.R. 569, 572 (1988) (the imposition of
      sanctions is within the sound discretion of the administrative judge).
¶20         Finally, to the extent that the appellant argues that the administrative judge
      was biased and should have recused himself, we find no evidence of bias. See
      RPFR File, Tab 1 at 9, 14. Neither the prior initial decision nor the remand initial
      decision 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).
¶21         Accordingly, for the reasons discussed above, we deny the petition for
      review and dismiss the appeal for lack of jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            This is the final decision of the Merit Systems Protection Board in this
      appeal. 5 C.F.R. § 1201.113(c). 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 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
                                                                                 14

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
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.
