Mary E. Purifoy v. Department of the Navy ( 2015 )

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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